Commissions of Inquiry and Policy Change: A Comparative Analysis 9781442668867

Table of contents :
Contents
Foreword
Preface
List of Tables, Figures, and Chapter Appendices
1 Why Study Commissions of Inquiry?
2 Theories of Policy Change and a Four-Part Theoretical Framework for Comparative Analysis
3 Structuring Canada’s National Policy Debate: The Royal Commission on Canada’s Economic Prospects
4 Politics and Promise: A Feminist-Institutionalist Analysis of the Royal Commission on the Status of Women
5 The Lasting Impact of the Berger Inquiry into the Construction of a Pipeline in the Mackenzie Valley
6 Of Leaps of Faith and Policy Change: The Macdonald Royal Commission
7 The Framing of Scientific Governance in Canada: Policy Change and the Royal Commission on New Reproductive Technologies
8 The Royal Commission on Aboriginal Peoples: An Exercise in Policy Education
9 Manufacturing Civil Society? How the Krever Inquiry on the Blood System in Canada Shaped Collective Action and Policy Change
10 The Romanow Commission on the Future of Health Care in Canada: Laying the Groundwork or a Missed Opportunity for Policy Change?
11 The Walkerton Inquiry and Policy Change
12 The Goudge Inquiry: Anatomy of Success for an Inquiry to Change Policy?
13 Commissions of Inquiry and Policy Change: A Comparative Analysis
References
Contributors

Citation preview

COMMISSIONS OF INQUIRY AND POLICY CHANGE A Comparative Analysis

Commissions of inquiry are a vital and ubiquitous part of the Canadian policy landscape. Established to answer the tough questions, they have been charged with examining almost every aspect of public life. This collection brings together leading Canadian scholars working in political science, public policy, and law to explore fundamental questions about the relationship between commissions of inquiry and public policy for the first time: What role do commissions play in policy change? Would policy change have happened without them? Why do some commissions result in policy changes while others do not? In search of answers, Commissions of Inquiry and Policy Change analyses ten landmark inquiries ranging across a variety of political, economic, social, cultural, environmental, and legal issues. Filling a significant gap in the literature, this volume will be a valuable resource for scholars and students of Canadian political science, public policy, law, and history, as well as a broader audience of readers interested in commissions of inquiry and their role in Canadian policymaking. gregory j. inwood is a professor in the Department of Politics and Public Administration at Ryerson University. carolyn m. johns is an associate professor in the Department of ­Politics and Public Administration at Ryerson University.

The Institute of Public Administration of Canada Series in Public Management and Governance Editors: Peter Aucoin, 2001–2 Donald Savoie, 2003–7 Luc Bernier, 2007–9 Patrice Dutil, 2010– This series is sponsored by the Institute of Public Administration of Canada as part of its commitment to encourage research on issues in Canadian public administration, public sector management, and public policy. It also seeks to foster wider knowledge and understanding among practitioners, academics, and the general public. For a list of books published in the series, see page 335.

Commissions of Inquiry and Policy Change A Comparative Analysis

EDIT ED BY G R E G O RY J . I N WOOD A ND CA ROLY N M . J O H N S

UNIVERSITY OF TORONTO PRESS Toronto Buffalo London

© University of Toronto Press 2014 Toronto Buffalo London www.utppublishing.com Printed in Canada ISBN 978-1-4426-4766-4 (cloth) ISBN 978-1-4426-1572-4 (paper)

Printed on acid-free, 100% post-consumer recycled paper with vegetablebased inks.

Library and Archives Canada Cataloguing in Publication Commissions of inquiry and policy change : a comparative analysis/edited by Gregory J. Inwood and Carolyn M. Johns. (IPAC series in public management and governance) Includes bibliographical references. ISBN 978-1-4426-4766-4 (bound). – ISBN 978-1-4426-1572-4 (pbk.) 1. Governmental investigations – Canada.  2. Political planning – Canada.  I. Inwood, Gregory J., editor of compilation  II. Johns, Carolyn M., 1967–, editor of compilation  III. Series: Institute of Public Administration of Canada series in public management and governance KE4765.C653 2014   353.4'630971   C2013-908596-3 KF5422.C653 2014

University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council.

University of Toronto Press acknowledges the financial support of the Government of Canada through the Canada Book Fund for its publishing activities.

Contents

Foreword vii Preface xi List of Tables, Figures, and Chapter Appendices xiii 1 Why Study Commissions of Inquiry?  3 Gregory J. Inwood and Carolyn M. Johns 2 Theories of Policy Change and a Four-Part Theoretical Framework for Comparative Analysis  20 Carolyn M. Johns and Gregory J. Inwood 3 Structuring Canada’s National Policy Debate: The Royal Commission on Canada’s Economic Prospects  49 Neil Bradford 4 Politics and Promise: A Feminist-Institutionalist Analysis of the Royal Commission on the Status of Women  70 Joan Grace 5 The Lasting Impact of the Berger Inquiry into the Construction of a Pipeline in the Mackenzie Valley  88 Frances Abele 6 Of Leaps of Faith and Policy Change: The Macdonald Royal Commission 113 Gregory J. Inwood

vi Contents

7 The Framing of Scientific Governance in Canada: Policy Change and the Royal Commission on New Reproductive Technologies  130 Francesca Scala 8 The Royal Commission on Aboriginal Peoples: An Exercise in Policy Education  154 Peter H. Russell 9 Manufacturing Civil Society?: How the Krever Inquiry on the Blood System in Canada Shaped Collective Action and Policy Change  172 Michael Orsini 10 The Romanow Commission on the Future of Health Care in Canada: Laying the Groundwork or a Missed Opportunity for Policy Change?  193 Patricia L. O’Reilly 11 The Walkerton Inquiry and Policy Change  214 Carolyn M. Johns 12 The Goudge Inquiry: Anatomy of Success for an Inquiry to Change Policy?  244 Lorne Sossin 13 Commissions of Inquiry and Policy Change: A Comparative Analysis 261 Gregory J. Inwood and Carolyn M. Johns References 303 Contributors 333

Foreword

Commissions of inquiry have been key features of the Canadian style of governance and have long attracted questions and comments. To this, with the volume you are holding, the IPAC Series in Public Management and Governance proudly adds a comparative treatment that pointedly places these enterprises in the policymaking process. I am doubly proud in that the editors are friends and colleagues in the Department of Politics and Public Administration at Ryerson University. These commissions have proved useful over time in many different instances. In the immediate, they often served to bail governments out of policy paralysis, or offered an easy way to remove (if only for a while) a contentious matter from the policy radar. Indeed, so useful are these commissions that it is a wonder why they are not used more ­often. Over the past twenty years, for instance, the federal government and most provinces have established commissions of inquiry on health care. But Ontario, which spends upwards of 40 per cent of its annual budget in this portfolio, has not done so. Policy breakdowns, scandals of mismanagement, and genuine confusions abound in countless files: Why are some commissions called to examine them in some jurisdictions and not in others? Politics matter. Second, the commissions have largely succeeded in settling the narrow legal issues that often triggered their creation, and actually worked to clear the underbrush of misconceptions around certain policy issues. Some have gone further and diagnosed the Zeitgeist of their time. Third, I would say that they have contributed mightily to shape at least a tenuous policy agenda even though they typically left unanswered many of the broad policy and implementation issues they encountered. These are broad statements, I will concede, based on the fact

viii Foreword

that the conclusions and recommendations of the commissions since the founding of Canada are rarely echoed. Does anyone really remember the conclusions of the 1943 Royal Commission to Investigate the Demands of the Coal Miners of Western Canada? Luckily, it can be consulted anywhere as it is now posted (like all commission reports) on the Internet. This constitutes the fourth usefulness of commissions of inquiry: they leave a rich deposit of research, testimony, and analysis for future generations. The Royal Commission on the Relations of Work and Capital in Canada (1889) left us with one of the richest and most objective perspectives on the working class in Victorian Canada. The Royal Commission on Bilingualism and Biculturalism (1967–70) contributed far more than policy ideas: it captured the unsettled spirit of Canada in the tumultuous 1960s. The most recent commission to deliver a report is another good case in point. In the fall of 2012, the Hon. Bruce Cohen unveiled the final report of his Commission of Inquiry into the Decline of Sockeye Salmon in the Fraser River, titled The Uncertain Future of Fraser River Sockeye. Three years earlier, as a response to a terrible salmon run, he had been commissioned by the Government of Canada to investigate and report on the decline of sockeye salmon in the Fraser River and make recommendations for improving the future sustainability of the fishery. He held hearings for 138 days, examined 2,145 exhibits, read 892 submissions, and heard from 178 witnesses. It was a genuine exercise in democracy. This was a complicated situation with numerous stakeholders. It involved history, culture, science of all sorts, and, not least, politics of all kinds. The report examined the situation of the Fraser River sockeye salmon, parsed fact and fiction, and made 75 recommendations to improve it. The report warned that changing environmental factors would make this issue complex for generations to come, but cleared the way to ensure that the federal government lives up to its commitments. The federal role, indeed, was controversial. The Department of Fisheries and Oceans was at once responsible for promoting salmon farming and its products while simultaneously charged with protecting wild salmon. The support for farming had to stop its expansion for seven years, the commissioner recommended, because it seemed to challenge the fresh river stock, even though the scientific evidence was unclear. If the federal government could not prove that farmed salmon did not hurt the wild salmon, then the industry would shut down in 2020.

Foreword ix

The report and its sharp recommendations were well received on all sides. It called for a balanced approach to policy, set guidelines and clear objectives, and en route to its conclusion left Canadians with a plethora of insights on an industry, its environment, and the people who make their livings and part of their culture with the beautiful (and delicious!) pink-fleshed fish. Royal commissions or commissions of inquiry thus seem to have many purposes, but their usage seems to have declined since the turn of the century. Save for the Commission of Inquiry into the Sponsorship Program and Advertising Activities (headed by Justice John Gomery) governments have been reticent to establish them. Is it because they are expensive and often serve only to summarize what is already known? What mechanism could replace them? Are their conclusions and recommendations not useful? On what sorts of topics should they be called? Who should head them? These are questions that must interest government officials, both elected and professional, as well as students of policy and public administration. This volume asks a difficult question: Notwithstanding their contributions to research, to consensus building, and to elite accommodation, what is the policy impact of these exercises? The conclusions of the contributors and editors, based on thoroughly examined case studies in a wide variety of fields, are stimulating and provocative. They should guide further reflection on this extraordinary – and underused – tool of Canadian governance. Patrice Dutil Editor, IPAC Series in Public Management and Governance Ryerson University

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Preface

The idea of a project on commissions of inquiry and policy change first took shape at two well-attended and spirited Canadian Political Science Association (CPSA) Annual Meetings in 2009 and 2010. Several scholars with expertise on various commissions of inquiry (COI) were brought together at Carleton University in May 2009 for a double roundtable session to discuss the state of knowledge on COIs and identify key questions and a comparative framework for analysis. The scholarship on COIs is now long-standing and rich, consisting of excellent analyses of COIs generally and in-depth case studies of specific COIs throughout Canadian history. Hundreds of federal and provincial COIs have been established since pre-Confederation times, and many have been the subject of scholarly analysis. They have garnered considerable attention from political scientists and other scholars because they are notable policy institutions given their extra-parliamentary character and their range of special investigatory and policy powers. Their unique role in the policy process in many policy areas has contributed to the allure of studying them. Although there were few comparative analyses at the time of our CPSA roundtables, the role of COIs in policy change had not been systematically or comparatively examined; all contributors were very interested in extending their scholarship in a comparative context. Existing scholarship clearly indicated that sometimes the work of COIs is largely ignored by governments; sometimes parts of their work are adopted; and sometimes they contribute to significant policy change. But the literature on COIs seems unable to supply theoretical frameworks that can adequately explain why and when the state needs to look outside the purview of its own institutional mechanisms for assistance in wrestling

xii Preface

with the increasingly complex policy challenges with which it is confronted, much less explain the effects of those mechanisms on policy change. A neo-institutional comparative framework was developed at the first CPSA roundtable focusing on the roles of ideas, institutions, actors, and relations to compare and analyse various COIs. Using this framework, several scholars from the workshop and others with expertise on individual COIs were invited to draft papers using the comparative analytical framework for presentation at the CPSA conference at Concordia University in June 2010. This book is the result of these two roundtables and brings together leading scholars in Canadian public policy to analyse COIs and their effects on policy change. A range of COI case studies from economic, social, legal, and environmental policy areas are assessed and compared with the goal of analysing their impact on policy change. This project employs a comparative case study method rooted in the literatures on public inquiries and policy change, and draws on the expertise of scholars with extensive research backgrounds and experience with COIs to explore when and under what conditions we might expect policy change to flow from these policy interventions. Contributing authors were asked to use the comparative framework and address three key questions: What role do COIs play in policy change? Would policy change likely have occurred without the COI? Why do some COIs result in policy change and others do not?

List of Tables, Figures, and Chapter Appendices

Tables Table 2.1 Commissions of Inquiry Included in This Study  44 Table 2.2 Classification of Policy Change Related to COIs  47 Table 11.1 Walkerton Inquiry Terms of Reference  219 Table 11.2 Content Analysis of Walkerton Inquiry Part 2 Report  221 Table 11.3 Comparison of Two Water Policy Ideational Frames  224 Table 11.4 MOE Budget Allocations ($millions) and Personnel 2000–9 232 Table 11.5 Individuals, Groups, and Organizations with Standing in Part 2 of the Walkerton Inquiry  237 Table 12.1 Parties Granted Standing in the Goudge Inquiry  255 Table 13.1 COI Commission Chairs and Occupational Background 279 Table 13.2 Do Number of Commissioners and Type of COI Matter? 280 Table 13.3 Typology of Policy Change Applied to COI Cases  292 Table 13.4 Comparative Analysis of Cases, Traditional Factors of ”Success” and Policy Change  296 Figure Figure 2.1 Conceptualizing the Role of COIs in Policy Change  28

xiv  List of Tables, Figures, and Chapter Appendices

Appendices Appendix 5.1 Chronology of Negotiated Agreements between the Crown and Indigenous Authorities in the Territories 107 Appendix 5.2 Dene Declaration: Statement of Rights  107

COMMISSIONS OF INQUIRY AND POLICY CHANGE A Comparative Analysis

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1 Why Study Commissions of Inquiry? Gregory J. Inwood and Carolyn M. Johns

If you’re pestered by critics and hounded by faction To take some precipitate, positive action The proper procedure, to take my advice, is Appoint a Commission and stave off the crisis. By shelving the matter you daunt opposition And blunt its impatience by months of attrition, Replying meanwhile, with a shrug and a smile, “The matter’s referred to a Royal Commission.” Thus, once a Commission in session commences, All you have to do is to sit on your fences No longer in danger of coming a cropper, For prejudging its findings is highly improper. When the subject’s been held for so long in suspension That it ceases to call forth debate and dissension, Announce without fuss “There’s no more to discuss. The Royal Commission’s retired on a pension.” Parsons, quoted in Lauriat 2010, 30–1

Introduction Commissions of inquiry (COIs) are a subject of great interest, not only to poets, but to political scientists, legal scholars, historians, social and economic policy scholars, public servants, and politicians. Whether they realize it or not, even Canadian citizens have an abiding stake in these unique and fascinating instruments of governance. This book has

4  Commissions of Inquiry and Policy Change

assembled some of Canada’s leading scholars with expertise covering a wide range of COIs across a number of social, economic, legal, environmental, and other policy areas of concern to Canadians to provide a comparative analysis and deeper understanding of the multifaceted processes by which policy change occurs. The initial selection of COIs to include in this book was based on bringing together policy scholars who had published or engaged in scholarly research and analysis of individual COIs. This group of scholars had previously completed thick descriptive, qualitative research of political, economic, cultural, and social change leading up to a given COI and some degree of analysis of the COI and its role in policy change. The editors extended an invitation to several scholars to a roundtable session at the Canadian Political Science Association (CPSA) Annual Conference in 2009, where theories of policy change and the comparative analytical framework were discussed. As a result of this roundtable, additional cases were added, and contributors were asked to deploy the comparative analytical framework and generate the research papers for a second CPSA conference in 2010. The ten cases included in this analysis were based on the comparison of a diverse range of COIs over time. They include a mix of policy advisory and investigative types, federal and provincial inquiries, large and small, and deal with important social, economic, legal, and environmental policy problems. The argument presented here is that COIs present excellent cases to advance the scholarly literature on policy change. This volume extends our knowledge of the role of COIs in policy change in Canada and beyond by focusing on three central research questions: 1 What role do COIs play in policy change? 2 Would policy change likely have occurred without the COI? 3 Why do some COIs result in policy change and others do not? Three assumptions underpin the analysis in this book. First, the theoretical starting point is neo-institutionalism and historical institution­ alism. Second, policy change is complex, dynamic, and multifaceted. Third, a reasonable temporal dimension is needed in which to examine policy change (Sabatier 2007). This study is framed by a historical-neoinstitutionalist approach using ideas, institutions, actors, and relations in combination with policy change models. Typically, neo-institutional theory focuses on the general lack of policy change and is unable to fully account for change that does occur. It suggests that institutions

Why Study Commissions of Inquiry?  5

structure past, present, and future dynamics in the policy process. But a more multidimensional approach moves beyond either incrementalist or punctuated equilibrium accounts of policy change. Change is evident in multiple aspects of policy and occurs at different tempos, paces, sequences, and directions. The classic dimensions of time-scale, mode, scope, and directional logic underpin three different degrees of policy change that we employ to determine whether policy change is transformative and direct, transformative but diffuse, or marginal and limited. We argue that a focus on ideas, institutions, actors, and relations before and after an intervention in the process using policy change theory and comparison of different COIs provides a unique opportunity to examine the dynamic aspects of policy change. Further, this approach focuses on a more complex “layering and conversion” rather than simply explaining policy change as the result of gradualism or crisis. A weakness is that it does not isolate effects of single factors, and we acknowledge this. But a focus on both endogenous and exogenous factors, including the historical, economic, social, cultural, ideological, and environmental context of the policy process, helps overcome this liability. In addition, the comparative analysis is important in allowing us to draw robust conclusions. The purpose of this chapter is to outline the current state of knowledge and research about COIs in Canada. It begins by canvassing the historical uses and definitional landscape of COIs. It next addresses the question of why COIs are created, then explicates their constitutionallegal basis in the Inquiries Act. A typology of COIs is offered, as is a review and assessment of the research questions that have permeated studies of COIs in Canada. This sets the foundation for an examination of the role of COIs in the policy process and in relation to theories of policy change in chapter 2. Finally, the chapter includes an outline of the book. The Historical Setting Commissions of inquiry are a long-standing part of the public policy process in many political systems. They are traceable through British history to William I’s 1085 royal mandate leading to the Domesday Book, the great survey used to assess the land and resources that the King could tax (Lauriat 2010, 26; Ratushny 2009, 12). In Canada, COIs stretch back to pre-Confederation times, when the British government authorized several inquiries into its British North American colonies, including most

6  Commissions of Inquiry and Policy Change

famously Lord Durham’s Report of 1841 (Hodgetts 1968; Iacobucci 1990; Law Reform Commission of Canada 1977; Ratushny 2009). Indeed, “Canadian commissions of inquiry in some measure mirror the concerns of history; and part of the national story is found in [their] reports” (Law Reform Commission of Canada 1979, 1). Talking about the 1951 Massey Commission on the Arts, Letters, and Sciences, one observer suggested that “some nations develop a culture through centuries of accumulated custom and achievement; others forge an identity through revolution or war. Canada established a royal commission. Could there be a more eloquent comment on our national character?” (Litt 1991; see also MacKay 1990, 30–1). COIs have been used for a variety of purposes and topics. Anderson notes that “Miss Agnes Macphail, M.P., alleged that on April 9th, 1934, at Kingston Penitentiary two men used ‘abusive and profane language concerning her.’ A royal commission was appointed to look into the matter” (Anderson 1983, 8). Trebilcock, Hartle, Prichard, and Dewees observe that COIs “have studied a vast range of subjects, ranging from the very narrow (the sex life of the oyster, the sex life of a cabinet minister, the fall of a bridge) to the very broad (bilingualism and biculturalism), and including virtually all the major social, economic and political issues facing the country” (1982, 39). Indeed, COIs carry so much weight that one day in the House of Commons, Prime Minister Louis St Laurent demonstrated his nuanced understanding of the finer points made in a certain British COI, only to be met by John Diefenbaker’s equally incisive counter-argument. Neither knew that the COI was a fictitious one that had been invented in a briefing note as a joke (Robertson 2000). According to Hodgetts, “As Professor MacGregor Dawson once wrote, about the only thing that royal commissions have not investigated is themselves” (Hodgetts 1966a, 471), although there have been calls for a COI into COIs (D’Ombrain 1997, 105). The British apparently thought of this long ago: “In a notable example of the governmental enthusiasm for these bodies, the royal commission itself merited official enquiry; in April 1909, Parliament appointed the Departmental Committee on the Procedure of Royal Commissions” (Lauriat 2010, 27). In 1867, Walter Bagehot observed, “The great maxim of modern thought is not only the toleration of everything but the examination of everything” (qtd in Lauriat 2010, 24). Perhaps no other country has taken the “examination of everything” to heart quite so much as Canada, which has initiated over 450 public inquiries under part 1 of the In­ quires Act, and over 1,500 under part 2 since 1867 (the Inquires Act is

Why Study Commissions of Inquiry?  7

discussed below), not to mention countless provincial and territorial inquiries. Indeed, the documents of federal COIs occupy as much shelf space in the Parliamentary Library as does Hansard (Stursburg, cited in Anderson 1983). When the Literary Review of Canada produced a list of “Canada’s 100 most important books” in 2006, six were COI reports. Prior to the Great Depression, COIs on broad social and economic issues of national magnitude were rare, but later increased in frequency (Courtney 1969, 199). Of all prime ministers, Laurier, Borden, Bennett, and King were most active in establishing COIs (D’Ombrain 1997, 88).The decade 1910– 19 saw a record eighty-three COIs, compared to the next-highest numbers: twenty-nine in the 1960s; twenty-eight in the 1970s; twenty-three in the 1870s; and twenty-one in the 1980s (see Inwood 2005; Henderson 1967; Bombak 1989; and Ledoux 1980. For a provincial list up to 1982, see Maillet 1986). The numbers tapered off by the turn of the twenty-first century, with only seven in the 1990s, and five in the first decade of the 2000s (see Library and Archives Canada n.d.). The drop in COIs may be related to the proliferation of think tanks, policy institutes in universities, and policy analysis units in virtually every department and agency of government. For example, Lindquist documents the appearance of over two dozen think tanks in Canada between 1970 and 2006, while acknowledging that his is a partial list (Lindquist 2006). Definitions The answer to the question “What are commissions of inquiry?” is not as obvious as it may at first seem. According to Lauriat, “In jurisdictions where such advisory bodies have been used for centuries, and, indeed, continue to be relevant to contemporary policy making, their existence may be taken for granted and their nature seemingly understood without need for particular scrutiny. A lay understanding may be misleading, however” (Lauriat 2010, 25). Given the variety of COIs, which differ in form, style, purpose, size, duration, mandates, and so on, comprehensively defining COI is actually challenging. The diversity of COIs has been seen as an impediment to a clear definition, although Ratushny sees this diversity as “a great strength … reflected in the flexibility of procedures authorized by administrative law” (Ratushny 2009, 2). Nonetheless, the scholarly literature has evolved from very basic to broad and more complex definitions. According to one view, “A public inquiry is an official review, ordered by government, of important public events or issues. Its purpose is to establish the facts and causes of an

8  Commissions of Inquiry and Policy Change

event or issue, and then to make recommendations to the government. All levels of government (federal, provincial, and territorial) have the power to call public inquiries” (Makarenko 2010). This definition draws attention to three important aspects of COIs. First, they are governmental policy instruments of the executive branch; second, they make recommendations only, not policy directly; and third, in federal systems like Canada, they exist at all levels of government. COIs are not part of the executive, legislative, or judicial branches of government. They are established specifically to address issues beyond the existing branches of government and are invoked when the regular machinery of government or policy process is broken or fails. Although they are created by the executive branch, “they are not answerable to it, as is a regular government department” (MacKay 1990, 34). Instead they are independent creatures existing in a shadowy realm of extra-­governmental institutions that are nonetheless public. As one former commissioner put it, “The Executive Branch through this chosen Executive instrument, is ­examining itself” (McDonald, qtd in MacKay 1990, 34). Generally, COIs follow constitutional lines reflecting the division of powers and policy responsibilities in sections 91 and 92 and are set up by one level of government or the other, although a small number have intergovernmental features and mandates. Both legal and political science scholarship have produced defi­ nitions and conceptual typologies of COIs. Political science scholars generally assert that COIs are temporary institutional sites of policy analysis and learning, as well as public engagement within which issues of representation and ideational contention are often prominent (see Jenson 1994; Bradford 1998). Jenson suggests, “They have become institutions in which contending interpretations and visions can be and are debated. In exploring alternatives such commissions establish and often frame debates, not only for themselves, but for governments and the public” (40). COIs can therefore be broadly defined as “sites of sense-making” through a social process where defenders of the status quo can engage proponents of alternatives to the status quo. COIs also provide an institutional forum for a combination of public input alongside expert advice. The role of public consultations versus research, for instance, is an aspect of virtually every COI. According to Jenson, “Royal commissions are alternative and contested sites in which ideas and actors seek representation. It is, therefore, useful to analyse the ideas and practices of royal commissions as representative bodies of a particular sort, in which

Why Study Commissions of Inquiry?  9

expertise – especially social science research – has occupied a major position since World War II” (Jenson 1994, 40). For legal scholars, defining COIs is more straightforward. The definition of COIs is established in part by their legal authorization, which stems from the constitutional framework and is statutorily defined in the federal Inquiries Act and its provincial equivalents. These legal foundations are a starting point for both legal and political science scholars. For purposes of this book, COIs are unique, temporary institutional sites meant to supplant regular institutions of policymaking where preexisting sets of relations in civil society and the state commingle with the new and temporary relations set up within the inquiry itself. As detailed in chapter 2, they are created out of nothing by the Executive, live short lives, and then disappear. But during their lifetime, they contribute importantly to the policy process and embody the potential for policy change. Moreover, their impact on policy debates often endures long after their reports have been issued. Why Create Commissions of Inquiry? Why create commissions of inquiry? Why not use the existing policy machinery of government to address pressing policy issues? Are policies not supposed to be made and changed in elected representative institutions like the legislature? As Le Dain points out, “A decision to institute a public inquiry on a policy question is a decision by the government to surrender some of its policy initiative, in particular its initiative to identify the issues and to create public expectations and shape public opinion as to what is a reasonable legislative approach” (Le Dain 1972, 80–1). Indeed, it is the limitations of the legislative, executive, and judicial branches of government that are often cited as the reasons COIs are created. First, the legislative branch tends to be focused on short-term, partisan gain tied to the electoral cycle, is conflictual, and is dominated by the usual cast of characters – mainly MPs and interest groups. A COI allows for non-partisan, longer-term reflective thinking in a more neutral atmosphere and can incorporate voices not usually present in the legislative realm. There are other alternative legislative institutions that governments employ to perform similar functions. Most importantly, these include parliamentary committees. But these are often wanting as policy investigatory bodies, given their limited capacity and partisan dominance by the government of the day.

10  Commissions of Inquiry and Policy Change

Second, certain limitations of the executive branch make COIs a logical choice. Like the legislative branch, the executive is constrained by par­tisanship, the electoral cycle, and the conflictual nature of politics as ­practised by a select few insiders. The public service, in support of the executive, should overcome some of these liabilities. It is non-partisan and can offer expert advice. However, it is still at the service of its political masters, whose capacity to think long-term is limited. Moreover, the public service cannot be asked to investigate itself or its political masters without perhaps the taint of self-interest colouring the investigations. And as Bradford argues, “Scholarly analysis of the Canadian state system shows that bureaucratic officials have acted more as a conservative force of continuity than instigators of change” and that in any event responsibility for decision-making is too dispersed to enable it to act cohesively as an agent of policy change (Bradford 1999/2000, 140). A more recent general problem for the legislative and executive branches (including the public service) is the erosion of public trust in government. Hence the resort to COIs, which, although technically a part of government, can be seen to be independent of it and are therefore often conferred with a legitimacy denied to regular executive and legislative bodies. Third, the judicial branch may be an appropriate choice for the type of work assigned to COIs. Indeed, the arm’s-length independence of COIs often resembles judicial proceedings, in that “there may be a judge-like authority who oversees the inquiry and its day-to-day activities. There are often witnesses who give testimony and evidence to the inquiry. There may also be lawyers who make arguments and examine the evidence” (Makarenko 2010). The judiciary is non-partisan, has the luxury of time, is in the business of establishing the facts of wrongdoing, and appears in general to provide many of the functions supplied by COIs. However, certain limitations are evident here, too. The judicial branch is not truly an investigative body, but rather an adjudicative one concerned with the alleged facts unearthed by other parties. Moreover, the courts are resorted to only in certain cases or after offences have been committed, but COIs can be more anticipatory, considering issues that may or may not occur in the future if certain policy actions are taken. Notwithstanding these limitations, it is thus not surprising that it is often the judicial branch that governments turn to in staffing and running COIs (see Ratushny 2009; Pross, Christie, and Yogis 1990; and Manson and Mullan 2003a).

Why Study Commissions of Inquiry?  11

In short, “in times of economic crisis or turbulence, when the demand for new policy ideas is high but the political system’s capacity to supply them is weak, royal commissions have filled the vacuum” (Bradford 1999/2000, 141). Further, according to Doern, The more important purposes of royal commissions need to be specified, for commissions in a sense go beyond merely being an investigative technique. Dr Hodgetts and Professor Fowke agree on six purposes of royal commissions: (a) to secure information as a basis for legislative policy, (b) to educate the public or the legislature, that is, to generate pressure for intended legislation, (c) to sample public opinion, the “trial balloon” function, (d) to investigate the judicial or administrative branches of gov­ernment, (e) to permit the voicing of grievances, and (f) to enable the government to postpone action on a politically embarrassing question. Any one or any combination of these purposes may serve a government as its reason for creating a royal commission. But ultimately the six purposes become one: to secure information as a basis for policy. (Doern 1967, 421)

Marier also points to six key reasons for establishing commissions. The first three are enhancing knowledge, facilitating political compromise, and educating the general public, all of which are learning functions involving mostly non-partisan conflicts. The last three are delaying, avoiding blame, and increasing support for a course of action, all of which are more partisan and political (Marier 2009, 1206). COIs are created for all of these reasons. The Constitutional and Legal Basis of COIs: The Inquiries Act The constitutional-legal basis for COIs offers some limited insights into their role in the policy process (see Law Reform Commission of Canada 1977, 7–11; Privy Council Office; Desbarats 1999, 108–9; Inwood 2005). Both levels of government have constitutional authority to establish COIs related to their respective areas of jurisdiction. Federal COIs in general are governed by the Inquiries Act. The first related statute was passed in 1846 prior to Confederation and later replaced by the 1868 Inquiries Act, formally entitled “An Act Respecting Inquiries concerning Public Matters.” This remarkably concise piece of legislation describes COIs as investigations “made into and concerning any matter connected with the good government of Canada or the conduct of any

12  Commissions of Inquiry and Policy Change

part of the public business thereof.” The authorizing language clearly allows for a tremendously wide scope of investigation with considerable discretionary powers for the governor-in-council (Cabinet) to initiate an investigation into almost anything it deems worthy of inquiry. The federal Inquiries Act is divided into two parts. Part 1 provides simply for “public inquiries.” Part 2 more narrowly authorizes “departmental investigations” to investigate and report on the operations of government departments and personnel (for a critique, see Law Reform Commission of Canada 1992, chapter 5). The legislation grants COIs quasi-judicial and judicial-like qualities. Commissioners appointed under the act are given the impressive powers to summon witnesses who must testify under oath and produce whatever documents or things requested by the commissioners. Part 2 gives a commissioner the same power to enforce the attendance of witnesses and to compel them to testify. It provides that any “wilfully false statement” made by a witness shall be punished in the same manner as perjury, but it also states that no witness “shall be compelled to answer any question, by his answer to which he might render himself liable to a criminal prosecution.” These provisions were reformed when, on 7 May 1880, royal assent was given to “An Act to Authorize Making Certain Investigations under Oath.” This act provided for a minister, with the authority of the governor-in-council, to appoint a commissioner or commissioners to investigate and report upon the business of a government department and personnel of that department. The commissioner was given the power of access to any public office or institution and its records, and the power to issue subpoenas for witnesses who would have to testify under oath, and who could be compelled to bring with them “any document, book, paper or thing” in their possession relevant to the inquiry. The Act of 1880 required that a person who failed to attend when required, or to produce evidence required, or who refused to be sworn or answer any proper question, was liable to a fine not exceeding four hundred dollars. In 1889, the Act of 1868 was amended to provide that witnesses shall not be excused from answering a question on the grounds that their answer might self-incriminate. Any such evidence, though, would not be admissible in a criminal proceeding, except in the case of a witness charged with having given false evidence. In 1906, the Act of 1868 became part 1, and the Act of 1880 became part 2, of a combined Act in the Revised Statutes of Canada as “An Act Respecting Public and Departmental Inquiries.” Subsequent amendments in 1912 and 1934 were also made to what was now the modern Inquiries Act.

Why Study Commissions of Inquiry?  13

As Makarenko points out, “In addition to the Inquiries Act, over 80 federal statutes give inquiry powers to government departments – either with or without referring specifically to the Inquiries Act. A few examples are: the Immigration and Refugee Protection Act, the Competition Act (formerly the Combines Investigation Act), and the Territorial Lands Act. These statutes either confer specific inquiry powers, or leave that open to be decided by Cabinet” (Makarenko 2010). In addition, all provincial and territorial governments also have their own versions of the federal Inquiry Act, though sometimes under different names. Ten jurisdictions use the title “Public Inquires Act,” New Brunswick’s is called the “Inquires Act,” one is the “Manitoba Evidence Act,” and Quebec’s is called “An Act Respecting Public Inquiry Com­ missions.” In general, though, these provincial and territorial acts are similar to the federal act in authorizing wide-ranging public investigations into pressing matters of public interest. In his assessment of the authorizing legislation at both levels of government, Ratushny notes that the central substantive feature of each is “that it gives the government the power to establish the subject and scope of each inquiry through terms of reference, which have the force of law,” while the central procedural feature of each is “to authorize commissioners to compel testimony and the production of evidence” (Ratushny 2009, 270). Typologies: Policy Advisory and Investigative Commissions of Inquiry In addition to defining COIs, there are important typologies that underpin the scholarship and analysis of COIs. As outlined above, legally, there are two types of inquiries under parts 1 and 2 of the Inquiries Act (or its provincial equivalent). In reality, there is considerable discretion in the mandate, structure, and function of COIs. To distinguish different types, a variety of taxonomies have been developed. Indeed much of the early scholarship focused on simply describing and classifying COIs. Doern argued that COIs “fall into two categories: first, the unique non-recurring issues which are the product of a particular event or set of circumstances, and second, the recurring issues of general social, economic, and cultural matters” (Doern 1967, 420). Some observers reject a dichotomous characterization, preferring an approach that suggests a contin­uum between the two main types (Salter 1990). Anderson found the twofold typology inadequate and expanded it into a twelve-fold one! (see Anderson 1983, 10). A former COI executive secretary argues,

14  Commissions of Inquiry and Policy Change

“Virtually every commission turns into a policy commission because, with investigative commissions, not only are the specific questions responded to, but most investigative commissions place their answers in a broader policy context” (Godsoe 1990, 72). Yet others use still different typologies. “Focusing on composition, Finer identifies three types of royal commissions: ‘representative, expert, or general civic,’ and Cartwright similarly classifies ‘impartial, expert, and representative’ committees” (Lauriat 2010, 30–1). Some literature on public inquiries has adopted a strong normative stance, rather than an empirical one. Schwartz, for instance, goes to great pains to justify the need to separate the two types of inquiries. Adjudication, he says, “is one thing, and policy-making is quite another. Adjudication looks at a heavily documented past; policy-making involves making projections about an uncertain future. Adjudication may not require imagination or creativity; policy-making often requires a high measure of creativity” (Schwartz 1997, 80). In addition, he counsels against governments mixing the two, arguing that this “may greatly protract the investigation of the particular episode to the detriment of both the victims of alleged wrongdoing and those who are under suspicion. Moreover, casting a commissioner in the role of social reformer may undermine confidence in his or her role as an impartial judge of past conduct” (Schwartz 1997, 83). The Ontario Law Reform Commission similarly found a two-way classification inadequate (Ontario, Law Reform Commission 1992). Ratushny devised a five-way classification (Ratushny 2009). Another observer categorizes them by purpose: “(1) the consideration of legislative policy; (2) inquiry into the activities of the administrative departments; and (3) inquiry into social conditions” (Clokie and Robinson cited in Lauriat 2010, 30). In fact, many, if not most, COIs defy easy categorization. They often transcend any single type, given the wide latitude in their terms of reference and the autonomy under which they typically operate. The Law Reform Commission of Canada employed a typology focusing on COIs that provide policy advice and those that are primarily investigative: Broadly speaking, commissions of inquiry are of two types. There are those that advise. They address themselves to a broad issue of policy and gather information relevant to that issue. And there are those that investigate. They address themselves primarily to the facts of a particular alleged problem, generally a problem associated with the functioning of government.

Why Study Commissions of Inquiry?  15 Many inquires both advise and investigate. (Law Reform Commission of Canada 1992, 13; see also D’Ombrain 1997)

The analysis used here distinguishes COIs by their purpose. First, there are those COIs that perform a policy advisory role. They tend to focus on broad matters of failure or lacunae in government policy, whether economic, social, environmental, or other, often in response to crisis. Several commissions, for instance, came on the heels of economic depressions. The main role of these bodies is to provide policy prescriptions, which the government is then free to embrace or ignore. These inquires can be very broad in nature and mandate. The other categorization is that of investigative inquiries, which tend to be more narrowly focused than policy advisory COIs and are concerned with a specific episode that revealed wrongdoing, a policy problem, or need for reform of existing policy. They are often reactions to tragedy, crisis, or policy failure. Like policy advisory COIs, investigative COIs are capable of reordering representation and giving voice to individuals and groups otherwise not usually heard. While their processes may sometimes be more narrowly technical, they can be sites for facilitating paradigm shifts. Some COIs contain both a policy prescriptive role and an investigative dimension wherein the cultural distinctions between lawyers’ values and policymakers’ values must be combined (see MacKay 1990, 37). However, little academic analysis has been done about these two types of COIs and their impact on policy change from a comparative perspective. Scholarly Analysis of Commissions of Inquiry Scholars have long been interested in the role of COIs in politics and policy. As Lauriat notes, “The first evaluation of the role of royal commissions in the British government was an attack on them: Joseph Toulmin Smith’s (1816–69) vitriolic ‘Government by Commissions Illegal and Pernicious’ published in 1849” (Lauriat 2010, 27). Lauriat observes, “Despite their continued use, albeit diminished popularity, academic studies dealing with the study of royal commissions are relatively thin on the ground, particularly when compared to the bodies of work on parliamentary and bureaucratic institutions” (Lauriat 2010, 27), and while she is referring to British COIs, the same is largely true for Canada as well. Willis argues that the study of public inquiries “lies in the borderland between ‘law,’ ‘political science’ and ‘practical politics,’ with the result

16  Commissions of Inquiry and Policy Change

that few have ventured to explore it, it being too high for the lawyers, too low for the political scientists, and too arduous for the practical politicians” (Willis 1973, 98). Two decades ago the lack of analysis in Canada was called “inexcusable …, for inquiries play a pivotal role in the definition of public issues and public debate, even when their recommendations are not implemented” (Salter 1990, 174). To some degree, the analyses of COIs in Canada has waxed and waned in response to the frequency of their use (Salter 1990; Ratushny 2009, 4–6) and alongside the evolution of the policymaking process. Bedard suggests the academic literature has focused primarily on three characteristics of COIs: “(a) analyzing a commission’s report for themes and recommendations; (b) assessing the impact of a commission’s report on the policy development and implementation processes; and (c) on the basis of 1 and 2 [sic] trying to answer the question of whether a commission’s benefits outweigh its costs” (Bedard 1999, 153). Full-length scholarly analyses of Canadian COIs are in short supply, ­although many shorter articles and essays have been produced, usually on particular COIs (see, for example, Manson and Mullan 2003a; Ferguson and Wardaugh 2003; Jenson 1992, 1994; Cameron 1993; Pross, Christie, and Yogis 1990; Bashevkin 1988; Wilson 1971; Courtney 1969; Hanson 1969; Walls 1969; Hodgetts 1952, 1964, 1966a, 1966b). A plethora of studies appeared during the Diefenbaker and Pearson years (see Wilson 1971), followed by diminishing academic and public interest in their use, as government “decommissioned” public policy inquiries and increasingly resorted to in-house capacity or the establishment of permanent bodies for policy advice (Aucoin 1990, 203). A critical political economy perspective on COIs emerged in the 1980s, including an exchange ­between Simeon (1987), Cameron and Drache (1985), and Drache and Cameron (1988). A useful longer study is Anderson (1983). Legal and public administration scholars also contributed to the analysis of COIs (Pross, Christie, and Yogis 1990). As discussed further in chapter 2, scholarship on COIs and the increasing need to understand their role in policy change reflects broader shifts in sources of policy advice and the policymaking process. This was followed by a rise in interest in using COIs from the 1990s onward (see Jenson 1994). Often, analysis has been undertaken by legal scholars, lawyers and judges who have participated in COIs. The Law  Reform Commission of Canada (1997b), Ontario (Law Reform Commission 1992), and Alberta (1991) have produced several important studies in this vein. At other times, academics in fields such as political

Why Study Commissions of Inquiry?  17

science, political economy, sociology, and history have embarked upon the study of COIs. The result tends to be two broadly differentiated bodies of literature: the first relies on a more rational-legalistic approach focused mainly on investigative inquires. This approach tends to assess the more technical workings of COIs and their judicial-like qualities, focusing on the nuts and bolts of the machinery and processes along with an assessment of whether a COI’s recommendations are adopted by government. A second approach in the literature focuses on social science, politics, and policy analyses. This approach looks at COIs as tools that governments use to address political problems and policy challenges. Typical is the view that “inquiries provide governments with the opportunity to delay, obfuscate, and defuse political controversy, and with advice that they are free to ignore” (Salter 1990, 174). According to the Law Reform Commission of Canada, “We recognize that commissions of inquiry may often be put to political use. It has been suggested, for example, that commissions may be established to stave off pressure, to postpone an awkward issue, to back up (hopefully) a government decision already made, or to make the man-on-the-street so sick of a particular issue that he will accept any resolution so long as the subject ceases to appear in the pages of his favourite newspaper” (Law Reform Commission of Canada 1992, 20–1). Most of this commentary relates to the scholarly debate about whether COIs are by nature reformist (see Wilson 1971; Simeon 1987) rather than radical (see Cameron and Drache 1988; Salter 1990; Bradford 1998; and Inwood 2005) and restricted in the policy recommendations they can put forward. This literature also argues that COIs must satisfy the government of the day, not undermine the legitimacy of the system as a whole, and are composed of elites whose interest it is to maintain the status quo (Inwood 2005). A related view is put forward by Drache and Cameron, who argue that royal commissions serve an explicitly political purpose (rather than a policy purpose): Governments need to defuse explosive issues. Since royal commissions are perceived to operate impartially, they are the ideal instrument of brokerage politics. In contrast to the theoretical purpose of producing a consensus through a formal process of fact-finding, the job of a royal commission is to appear to have produced a consensus …   For this reason the commission must be headed by a high-profile, supposedly neutral person, often an ex-politician or judge, who is seen to be

18  Commissions of Inquiry and Policy Change acting in the national interest …   This legitimization is completed by the hiring of learned academics to research and write background studies and the final report. (Drache and Cameron 1985, xi)

However, Salter makes the important point that while conventional wisdom suggests inquiries are intended to defuse political controversies, in fact they often stir them up (Salter 1990). In this regard, some literature importantly delves into the internal politics and power dynamics played out in COIs where contending discourses can materi­ alize, irrespective of the intentions of government to defuse an issue. Cameron claims that “a commission is chiefly remembered for its final report. The untold story, normally, is how the commission produced the thing for which it is remembered” (Cameron 1993, 333). COIs may contain, for instance, “an important value conflict between … lawyers’ values and policy makers’ values” (Christie and Pross 1990, 2), or between the academics conducting research and the seconded public servants managing the operations of the COI, or between the values articulated by the public and those of key actors in the COI, or indeed between commissioners themselves (Inwood 2005). The two approaches in the literature are mirrored to some extent within COIs themselves. Occasionally, efforts have been made to bring the two methodological and analytical approaches together (see Pross, Christie, and Yogis 1990; Manson and Mullan 2003a). However, the policy scholarship in the past twenty years has focused mainly on indepth analysis of individual COIs. This scholarship often includes both approaches above, but what is missing from the literature generally are comparative assessments of the impact of COIs on policy change. Bradford’s analysis of the policy impact of five major Canadian royal commissions across time is a significant contribution to under­ standing the central role of ideas related to COIs (Bradford 1999). More recently, Ratushny has also undertaken some comparative analysis with an ­emphasis on drawing lessons from forty inquiries (Ratushny 2009). However, Jenson notes, there is “some controversy over their contribution to innovation in policy” (Jenson 1994, 41). Comparative analysis offers the potential to improve our knowledge and understanding of the role of COIs in the policy process. The diversity of COIs does make them challenging to study and compare. As Lauriat asserts, “There are obvious challenges to studying these bodies, which set their own procedures, are appointed for a wide variety

Why Study Commissions of Inquiry?  19

of reasons, and have results which are difficult to identify, let alone assess” (Lauriat 2010, 28). However, these challenges are less daunting, given what we already know about COIs. This foundational knowledge is important for furthering our understanding of both COIs and policy change. The Plan of the Book To further the comparative analysis of COIs and an understanding of their role in the policy process, we have compiled ten case studies to assess their role in policy change. Chapter 2 outlines the methodology and rationale for case selection, considers various theories of policy change, and outlines a theoretical framework of ideas, institutions, actors, and relations that each contributing author employs to assess policy change and the respective case study. The cases are then presented in chronological order in part to determine if there are lessons learned over time about policy change on the basis of understandings gleaned from successive COIs. In chapter 3, Neil Bradford surveys the 1957 Royal Commission on Canada’s Economic Prospects. The 1970 Royal Commission on the Status of Women is examined by Joan Grace in chapter 4. In chapter 5, Frances Abele assesses the Mackenzie Valley Pipeline Inquiry, which reported in 1974. Chapter 6 presents an analysis of the 1985 Royal Commission on the Economic Union and Development Prospects for Canada by Gregory Inwood. The 1993 Royal Commission on New Reproductive Technologies is examined in chapter 7 by Francesca Scala. Chapter 8 presents an examination of the 1996 Royal Commission on Aboriginal Peoples by Peter Russell. The Commission of Inquiry on the Blood System of 1997 is analysed by Michael Orsini in chapter 9. Chapter 10 presents an examination of the 2002 Commission of Inquiry on the Future of Health Care in Canada by Patricia O’Reilly. The Walkerton Commission of Inquiry, also in 2002, is assessed by Carolyn Johns in chapter 11. Lorne Sossin assesses the 2008 Inquiry into Paediatric Forensic Pathology in chapter 12. Finally, chapter 13 provides a comparison across the cases and conclusions about the role of COIs and policy change.

2 Theories of Policy Change and a Four-Part Theoretical Framework for Comparative Analysis Carolyn M. Johns and Gregory J. Inwood

Introduction This chapter sets out the theoretical framework, methodology, and rationale for comparing the various commissions of inquiry (COI) as cases in this analysis. The first section outlines the broad theories of policy change that have import for this study. The second section highlights why COIs are excellent cases with which to examine policy change. The third section outlines the theoretical framework of ideas, institutions, actors, and relations designed to explain the degree of policy change in each case. The fourth section outlines the comparative case method that flows from the theoretical and analytical framework, the cases selected for the analysis, and the evidence used to examine the significance of various factors in helping understand the role of COIs in policy change. The chapter ends with an overview of a typology of policy change used to compare the ten cases. Theories of Policy Change Early iterations of theories of policy change often centred on a simple policy cycle of formulation, implementation, and evaluation. In one early consideration of the place of COIs in this classic policy cycle, Doern concluded, “If the totality of the policy process can be viewed as a threestage spectrum involving a research or investigatory stage followed by a decision stage and then an implementation stage, it will be readily seen that the royal commission plays only a ‘pre-decision’ or investigatory role” (Doern 1967, 418). Thinking and theorizing about the role of both policy-advisory and investigative COIs in the policy process has evolved

Theories of Policy Change  21

significantly in the past forty years. Most developed is scholarship conceptualizing the role and influence of COIs at the problem-definition, agenda-setting, and formulation stages (see Marchildon 2001). Recently, more nuanced public policy literature sees the policy cycle as including agenda-setting and problem definition, formulation, implementation, and evaluation (Sabatier 2007; Howlett, Ramesh, and Perl 2009; Pal 2010; Inwood 2012). It also starts from the assumption that the policy process is not rationally cyclical, linear, or proceeding in stages or phases. It is much more complex and dynamic in the broader political, economic, social, cultural, and ideological context. This analysis attempts to advance the scholarship on COIs from a descriptive focus on the place of individual COIs in the policy cycle to a more nuanced, theoretically informed, and sophisticated analysis by using theories related to policy change. Many policy theories focus on understanding how and why policies change. Stemming from Dye’s classic definition of policy as “whatever governments choose to do or not to do” (Dye 1992, 1), there is an assumption that policies and the systems in which they exist contain a dynamism that policy theory seeks to explain. All such theories are based on the fundamental assumption that between t1 and t2, there is empirical evidence that some aspect of policy has changed (Capano 2009, 9), implying that a temporal approach is therefore required. This seems simple, but defining and examining policy change is not. Some estimates suggest that there are over twenty different models of policy change (Capano 2009). Broadly speaking, these include state-centred and societal-centred theories of policy change. Some focus on internal/endogenous and/ or external/exogenous political, economic, social, and cultural factors, placing an emphasis on one or more, depending on the approach. Neoinstitutionalism embraces the role of both state and societal factors and assumes institutions influence behaviour of the actors who inhabit them. A range of institutional theories have been combined with other theories, including historical, sociological, and rational-choice institutionalism (Peters 1999; Lecours 2005). A common foundation is the theoretical assumption that state institutions have some effect in limiting policy change and a degree of path dependency that does not allow policy to change significantly from the past. However, overall neo-institutional theory focuses on the general lack of policy change; it is unable to account for change that does occur (Lecours 2005). For some time, Lindblom’s incrementalism was thought to be generally applicable across many policy areas, jurisdictions, and

22  Commissions of Inquiry and Policy Change

scales (Lindblom 1959). However, by the 1990s there was mounting evidence that occasionally the long, slow process of incremental change in  public policy gives way to a relatively sudden “transformative moment.” Focusing events, crisis, exogenous shocks, and epochal changes in policy goals and direction challenged the theory of incremental change. While incrementalism was seen as a conservative approach tending to preserve the status quo, it was noted that change occurs in response to an event that focuses attention on what is wrong with the status quo (Birkland 1998). The role of focusing or crisis events is seen as central to analysing changes in policy trajectories that are otherwise characterized by stasis or even policy inaction. Moreover, path dependencies can be realigned by critical events, given that institutions “evolve in response to changing environmental conditions” (Thelen 1999, 387). For some, “punctuated equilibrium” is the new orthodoxy for theorizing about policy change. Change in this perspective can occur as a result of significant events or be precipitated by “relatively minor events that add up over longer periods of time” (True, Jones, and Baumgartner 2007 160). There are also more “messy” and less rational theories of policy change. “Garbage can” and ”mixed scanning” models (Etzioni 1967; Kingdon 1995) argue that policy change involves elements of both incrementalism and limited human rationality to connect policy problems with solutions that ultimately lead to change. Another significant theoretical development is that the pace and degree of policy change matters. Hall’s first-, second-, and third-order change is important here (Hall 1989). “First-order” change involves minor changes to policy instruments and institutions, but no changes to policy goals. “Second-order” change involves changing policy instruments within a policy regime. Both are primarily incremental. “Third-order” change involves a shift in policy goals, the development of new ideas about policy problems and solutions, and more paradigmatic policy change. Hall’s contribution is central here. Policy change is multidimensional and not linear, but it can still be observed, characterized, and classified. Policy change, therefore, can be conceptualized along several continuums: evolutionary/revolutionary; incremental/punctuated; shallow/ deep; short term/long term; and reactive/proactive (Capano and Howlett 2009, 8). In addition, some policy change is intentional and anticipated, and other change is unanticipated and unintentional. The durability of the change can also vary. For example, some changes may be temporary, and a reversion may occur after some time; others may be fundamental and irreversible.

Theories of Policy Change  23

As Thelen points out, policy change can take place even under perceived times of institutional stability or “inertia” (Thelen 1999, 2004; Streek and Thelen 2005). Thelen also reminds us that political systems comprise layers of institutions (2004). That is, if policy change is not possible within the typical policy process or at the usual level of government (federal or provincial), opportunities may be available elsewhere. Thelen and Hacker offer a nuanced perspective on policy change that captures evolutionary processes of “layering and conversion” rather than “crisis and change.” Policy shifts are contested and gradual as embedded institutions take on new goals that co-evolve with existing ones. Over time the result may be institutionalization of new policy purposes and practices. In summary, there is no shortage of different theoretical concepts ­related to policy change, including incrementalism, path dependency, institutional adaptation, punctuated equilibrium, exogenous shocks, policy windows, opportunity structures, policy learning, and political economy approaches that focus on broader social and economic structures and power dynamics. Indeed, distinguishing between related concepts like policy learning and policy change remains a challenge (Bennett and Howlett 1992), as is simply defining and examining policy change. There is a need to address what Howlett and Cashore call “the dependent variable problem” in the study of policy change: what is it that we are trying to examine and explain? (Howlett and Cashore 2009). Using a positivist approach, the object of analysis has to be clearly defined and observable. However, the difficulty with a positivist approach is that it is not just one element of policy that can change. Change is evident in multiple aspects of policy (process, goals, actors, instruments, institutional arrangements) at different tempos, paces, sequences, and cumulative directionalities (Howlett and Cashore 2009, 41). As noted by Howlett and Cashore, The study of policy change is necessary in order to see what is persistent and institutionalized in public policy, and to understand what, how and when something is changing; in other words, if policy change occurs, be it radical or marginal, something in the persistent and institutionalized components of a policy field has been transformed. This “something” may be the institutional arrangements of policy, its organizational field, its definition, its outcome, its target, or some other element of its composition: policy change means that something inherited from the past has undergone transformation. (Capano and Howlett 2009, 3)

24  Commissions of Inquiry and Policy Change

Therefore, we start with the recognition that policy change is complex and multifaceted and has an inherent temporal dimension. There are sets of factors that are identifiable and observable and the degree of policy change can also be characterized. However, there are many aspects of policy change as a process that are dynamic, and even conceptual snapshots limit our ability to generalize about causes or determinants of policy change. It is therefore not surprising that post-positivist approaches are deployed such as historical institutionalism (Pierson 2000; Thelen 2004), narrative policy analysis (McBeth, Shanahan, Arnell, and Hathaway 2007) and discursive analysis (Zittoun 2009) to analyse policy change. A broad conceptualization of policy change is thus the foundation for this analysis. It is a focus on COIs as uniquely contained injections into the policy process that fascinates the contributors to this book and may help extend theories of policy change. Commissions of Inquiry and Policy Change COIs all have some potential to be the source of, or stimulus for, policy change. They are often established with the explicit goal of fostering change to the status quo. Yet some are established with a fundamental predisposition to support the status quo. As outlined in chapter 1, they are established outside the traditional policy process, with the recognition that “conventional channels of policy development and interest representation are not the sources of major policy ideas or drivers of change” (Bradford 1999/2000, 141). In the context of theories of policy change, the establishment of a COI may be the result of a build-up of anomalies in the policy regime over time that cannot be accommodated. This is evident whether one adopts an incremental or more “punctuated” view of policy change. Punctuated-equilibrium theories of policy change focus “on the interaction of political institutions, interest mobilizations, boundedly rational decision making, and the dynamics of the interplay among institutions, interests and attentiveness” (True, Jones, and Baumgartner 2007, 158). “Punctuated equilibrium in policy studies applies to a particular situation where political conflict is expanded beyond the confines of expertdominated policy subsystems to other policy making venues,” giving us a clue to when we might expect to see more or less policy change (176). Thus COIs can be conceptualized as institutionalized “punctuations” inserted into the policy process, as sites of potential for policy change, and also as “sites of resistance” to change (Timpson 1999).

Theories of Policy Change  25

In keeping with this theoretical approach, with the introduction of a COI, there is the potential for a paradigm to break down or reconstitute itself until the next set of challenges emerges. The institutionalization of a new regime then confers the imprimatur of legitimacy and a “new normalcy.” However, while the focus of this approach places emphasis on the centrality of institutions and interests, the scholarship on COIs indicates that ideas, relations between individuals, and the exogenous context in which they are embedded are also important. COIs are themselves Janus-faced. They ostensibly seek change but are embedded in the prevailing political, economic, social, cultural, ideological, environmental, and institutional context of the times. The potential for policy change is thus related to the broader political system in which they are embedded. The classic way to assess the impact of COIs on policy change is to examine whether the inquiry’s findings and recommendations were received and implemented in the form of new or amended policy (legislation, regulations, rules, or programs). However, in terms of the impact of COIs and policy change, Salter points out that we need to look beyond merely the impact of recommendations: “We might also say that one cannot judge an inquiry by the fate of its specific recommendations, however many are eventually adopted. Inquiries have an impact on both the climate of opinion and the conceptual frameworks that are used for policy analysis. Changes to policy often come from new ways of speaking about policy issues, as much as they do from specific recommendations” (Salter 2007, 292). In general, along with the powers of recommendation come some potential for policy change. The COI literature reveals that sometimes this potential is limited from the outset. Nonetheless, there is the argument that COIs must be conscious of the feasibility of any policy change they recommend. This highlights what Salter identifies as an inherent contradiction (Salter 1990, 174). COIs must be free to be as critical as the evidence suggests they should be; but must also report and make recommendations to governments that may not take kindly to criticism or radical suggestions for change. Pragmatism over radical policy change, therefore, may be the most that can be expected. Simeon suggests COIs are inherently more conservative than radical: “Royal Commissions are appointed by governments in power. By their very nature they can be no more than meliorative and reformist, rather than revolutionary. Members are representatives of established elites. Commissions are also creatures of their times; perhaps the best that can be expected is that they collect, and then express, a shifting conventional

26  Commissions of Inquiry and Policy Change

wisdom, tilting it in one or other way, but working well within the bounds of the existing order” (Simeon 1987, 169–70). Salter claims “The first contradiction of the inquiry process lies in the capacity of inquiries to incorporate quite radical debate while oriented to the quite limited, highly pragmatic and, indeed, reformist goal of producing specific recommendations for policy” (Salter 1990, 77). Ratushny says COIs must act as both a “check on politics” and “political tool” simultaneously (Ratushny 2009, 20), which also conditions their capacity to effect policy change. Another view focuses on the balance that must be struck in every COI. As Inwood explains, Commissioners must find a balance between acceptable reformist prescriptions for the problems they are studying and the more radical suggestions they receive. Inherently, if the commission adopts the radical agenda presented to it, it calls into question the very legitimacy of the government and system as a whole. But if it does not pay heed to the more glaring criticisms with which it is presented, it undermines the legitimating role it was intended to serve. Alternately, it can frame its recommendations in such a way as to foreclose the more radical options that it receives. In this regard, royal commissions play a significant role regarding the maintenance of existing dominant societal paradigms or the construction and emergence of new ones. (Inwood 2005, 51–2)

However, assessing the impact of a COI entails a review of more than just whether its recommendations were reformist or radical. It is also far more than a scorecard of whether the government accepted or rejected its recommendations (Pross, Christie, and Yogis 1990, 13). The analysis in this book also assumes that policy change is typically gradual, has to be examined on various levels, and can take different forms. It is the space between the state of policy pre-COI and post-COI that needs examination, recognizing that COIs are embedded in a policy context before, during, and after their existence. Analysing the role of a COI itself in isolation from its context is very challenging, both theoretically and empirically. Nonetheless, COIs are excellent cases with which to examine policy change. First, they are temporary contained policy arenas that can be observed. As such, it can be seen where they enhance and/or hinder policy innovation (Bradford 1998). Second, while the usual policy process has long been conceptualized as a black box, COIs allow the policy process to be examined in an open,

Theories of Policy Change  27

­ ell-documented way. They allow scholars to look inside the black box. w There may be other policy venues and processes ongoing simultaneously, but COIs allow examination of policy change before, during, and after the COI in a controlled, almost laboratory-like setting. The diversity of COIs does make them challenging to study and compare. As Lauriat asserts, “There are obvious challenges to studying these bodies, which set their own procedures, are appointed for a wide variety of reasons, and have results which are difficult to identify, let alone assess” (Lauriat 2010, 28). However, the cases selected in this volume allow us to build on the foundational knowledge on COIs, using theories of policy change. All cases in this study use a common framework to examine policy change across what are now well-known dimensions (or sets of determinants) of policy change – ideas, institutions, and actors. One contribution of this study, drawing on recent work by Inwood, Johns, and O’Reilly (2011) is to disaggregate relations as a fourth determinant of policy change for reasons detailed below. Theoretical Framework: Ideas, Institutions, Actors, and Relations The scholarship on COIs indicates that there are several important internal and external factors that must be considered in analysing the role of COIs in the policy process generally and policy change more specifically. Figure 2.1 depicts the role of COIs in policy change, highlighting the significance of comparing pre- and post-conditions. This raises the question of whether a given COI was created at a point in time when sufficient momentum already existed for change. Alternatively, some COIs may have been created with no expectations for change as a political “placeholder” to maintain the status quo and diffuse momentum for change. To change or not to change becomes central (see figure 2.1). In assessing policy change, the interface between ideas, institutions, actors, and relations is viewed as complementary rather than competitive. Although we examine them as analytically separate, we recognize it is difficult to “control” for one of these factors to isolate its impact. The analysis therefore contains both elements of a positivist tradition and post-positivist recognition that policy change is complex. In this section we define ideas, institutions, actors, and relations, examine the COI literature on policy change, and outline the empirical scope that guided each of our contributors in assessing the role of COI in affecting policy change.

28  Commissions of Inquiry and Policy Change Figure 2-1 Conceptualizing in Change Policy Change Figure 2.1: Conceptualizing the Rolethe of Role COIsofinCOIs Policy

Political ~ Economic ~ Social Context

PRE

POST

Ideas Institutions Actors Relations

Ideas Institutions Actors Relations

COI

Political ~ Economic ~ Social Context

Ideas Ideas here refer to the larger political, economic, and social ideas that set the context and influence behaviour and actions of policymakers (Inwood, Johns, and O’Reilly 2011). They are the ideas that are important to a particular policy area. As well, they are the ideas related to broader political, economic, and social ideas, such as those on the role of the state, markets, and society in framing the policy decisions of their time. Social ideas like justice, fairness, and equality, and procedural ideas like due process also play a role. Likewise policy or issue-specific ideas play an important role in policy debates. The public policy literature has illustrated how ideas matter (Hall 1989). Policy analysts are increasingly concerned with the capacity of state and societal actors to harness ideational resources for institutional learning and even institutional transformation that allows for coping with complex policy problems (Inwood, Johns, and O’Reilly 2011). Policy theory posits that ideas matter in particular in the problemdefinition, agenda-setting, and formulation stages of the classic policy cycle. Problem definition is fundamental to understanding the role of ideas in policy change, as “policy problems are matters of interpretation and social definition” (Cobb and Elder 1983, 172). Hogwood and Gunn see problem definition as “the processes by which an issue is perceived

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by various interested parties; further explored, articulated and possibly quantified; and in some but not all cases, given an authoritative or at least provisionally acceptable definition in terms of its likely causes, components and consequences” (Hogwood and Gunn 1984, 109). Stone argues that problem definition is essentially a process of imagemaking, involving causal stories where ideas about causation underpin the struggle to influence which idea is selected to guide public policy (Stone 1989, 283). This can involve “policy framing,” which can be the most crucial stage of the policy process (Schon and Rein 1994), particularly when connected to agenda-setting (Soroka 2007), which can have a decisive impact on the entire policy process and its outcomes (Hessing, Howlett, and Summerville 2005, 137). As noted by other theorists, “policy images are a mixture of empirical information and emotive appeals,” and “bounded rationality undergirds all policy change” (True, Jones, and Baumgartner 2007, 161–4), given that knowledge and information are central to ideas. Some ideas simply become fashionable at specific points in time as “ideas whose time has come.” It is valuable to assess COIs for their role in the development of policy debates (Aucoin 1990). COIs are a seemingly natural place for examining the policy influence of new ideas. Indeed, as Berger noted, public inquiries “have brought new ideas into the public consciousness. They have expanded the vocabulary of politics, education and social science. They have added to the furniture that we now expect to find in Canada’s storefront of ideas” (Berger 1988, 25). Indeed, they “provide the only forum in which all stories and evidence … are brought together, considered and publicly validated” (Lugosi 2011, 301). The COI literature in Canada has put ideas front and centre. By the simple act of creation, COIs become state-sanctioned institutions with the potential for policy change in which different interpretations, problem definitions, and policy solutions are debated. In exploring alternatives, such COIs establish and often frame debates, not only for themselves, but for governments and the public (Jenson 1994, 38). They are “sites for contestation over meaning” (Orsini 2002a). This begins with the establishment of the COI. It has been suggested that “the most important moments in the life of a public inquiry occur right at the beginning with the decision to establish an inquiry, the selection of its members and the drafting of its terms of reference” (D’Ombrain 1997, 92). Given the latitude accorded by the Inquiries Act, there is a wide scope in drafting the terms of reference. In some cases, the process can be very political. Typically, a small cohort of

30  Commissions of Inquiry and Policy Change

officials in the Prime Minister’s/Premier’s Office and the Privy Council/ Cabinet Office is responsible for this stage, although they may also receive input from the relevant minister, deputy, and as-yet-to-be-named commissioners or staff. However, negotiating what should be in the mandate can be difficult for prospective commissioners of policy advisory COIs, given that they may not know precisely what the government wants to accomplish or investigate (indeed, government may not know this itself). The other part of COIs that has been examined extensively related to ideas is the role of experts and the research function in COIs. Legions of academics have toiled for countless COIs to compile bodies of “expert” knowledge for understanding issues, contributing to problem definition or researching alternative solutions that may ultimately end up in the recommendations of the COI. Alternately, the research may “lead to contradictions with the commission’s analysis and findings, but is highly tolerated” (Marchildon 2001, 12). Debates about the utility of that knowledge, whether the research should be primary or secondary, and who is hired to conduct it, and whether researchers are “experts” or “advocates” – or both – have featured prominently in many assessments of COIs. The importance of the research should not be underestimated. As Drache and Cameron suggest, “A royal commission can change not only the focus of public discourse but also conventional wisdom, by generating an ‘expert’ body of knowledge” (Drache and Cameron 1985, xi). There are several ways the research component of COIs reflects ideas. First is which type of research is solicited and conducted. Research on COIs indicates that decisions about which experts and disciplinary perspectives are included is important (Inwood 2005; Anderson 1983). Second, the type of research may have an impact on what ideas are sought and included (Cairns 1990). Is research to be original or received? If received, from where? Only from academics and lawyers? What about interest groups and think tanks? Should it be comparative? Should ideas be collected from other jurisdictions? Finally, another question is the quality and meaning of the research in the broader context of the COI. This is why many analysts focus on the commissioned research and solicited submissions when trying to analyse the role of ideas in determining the direction and ultimate policy recommendations that flow from COIs. Focusing on ideas is a very powerful way of analysing the role of COIs in policy change (Jenson 1994). Some COIs are classic cases that exhibit “a struggle for discursive hegemony in which actors try to secure support for their definition of reality” (Hajer 1995, 59). The COI

Theories of Policy Change  31

literature indicates that causal stories are key, specifically those from law and science as the social institutions charged with arbitrating disputes about causal theories (Stone 1989, 300). As Schneider and Ingram argue, science and professionalism can “commandeer an issue with important social value implications and transform it into a matter of elite scientific and professional concern” (Schneider and Ingram 1997, 167). Law also plays a key role in formally translating narratives and influencing which stories and discourses resonate as truth (Torres 2002, 1377; see also Lugosi 2011, 302–3). A discursive approach attempts to focus on discourse of the subjects involved by taking into account not only the way a problem is constituted, but also the way policy is defined. The actor’s discourse is considered to be the indispensable link that allows policy change to be understood (Zittoun 2009, 67). This places emphasis on the link between actors and ideas. The analysis is focused on the way in which actors speak about policies, how they define problems, and “how the actors put public policies into words” as “actors go through the process of building up a common discourse” (75–6). Policy actors are engaged in “sensemaking,” a process of “interpretation and meaning production whereby individuals and groups reflect on and interpret phenomena and produce intersubjective accounts” (Brown 2000, 2). Such an understanding of COIs challenges conventional accounts of inquiries as quasi-judicial or evidence-based attempts to “get to the bottom” of things, as investigative inquiries are often framed. Treating COIs as sense-making processes requires us to foreground the importance of narrative and storytelling, and how individuals make sense of events (Brown 2000). As Kriesi points out, understanding the role of such moments or events is central to understanding “unsettled lives. Where a set of assumptions that has become so unself-conscious as to seem a natural, transparent, undeniable part of the structure of the world … becomes disrupted in ways unpredicted by their accumulated knowledge, people will require new interpretations … belief and ritual systems aspiring to offer a unified answer to problems of social action” (Kriesi 1988, 363). Consequently, actors begin adopting competing meaning systems because they make better sense of the new situation (see Jenson 1989). COIs serve as sites of representation by facilitating an interchange between state and society that results in policy learning and ideational exchange. Jenson describes the process in this way: “Thus, the educational activities of commissions are dialectical. Commissions may be established by the government to inform the public that ‘this government [is]

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truly concerned, and that new policies are in the offing.’ At the same time however, some commissions may not only provoke new ways of thinking about and concepts for considering problems, but educate the public to that novelty, thereby contributing to the generation of new ideas, identities and demands” (Jenson 1994, 50). Others place the emphasis on the interface of institutions and ideas. Schmidt contributes an approach called “discursive institutionalism,” “which takes account of the substantive content of ideas and the interactive processes by which ideas are conveyed and exchanged through discourse” and “calls attention to the ways in which political actors’ ideas serve to (re)conceptualize interests and values as well as (re)shape institutions” (Schmidt 2009, 531; see also Schmidt 2010). These can be observed in loosely connected individuals united in epistemic communities or more closely connected individuals in advocacy coalitions. While Schmidt uses discursive institutionalism primarily to help explain the dynamics of change in political economy, the applicability to policy change is useful here. This interface between ideas and institutions is critical to understanding policy change. In discursive institutionalism, changes in the ideas and values are the core of the discourse (Peters 2012, 120). Many feminists, for example, argue that language must be challenged, since it is not a “neutral and transparent means of representing reality … rather, language is assumed to codify an androcentric world-view” (Ehrlich and King 1998, 165). The feminist project highlights the point that it was men of a particular capitalist class who had control over “naming” and therefore the institutionalization of “meaning.” Language, then, becomes one expression of gendered social relations that are conveyed by political and policy institutions, subsequently framing public policies. Reframing or changing a particular policy language is a challenge once certain ideas and values become embedded within an institutional setting. Hall argues, “If we want to accord ideas an explanatory role in analyses of policy change, we need to know much more about the conditions that lend to one set of ideas rather than another in a particular historical setting” (Hall 1989, 362). COIs are one contained institutional arena in which ideas and these conditions are observable in a particular historical period. Ideas are embodied in the context surrounding the COI, and some are evident in the documentation and discourse related to it. Analysis here focuses on identifying key ideas and how they changed as a result of the COI. In most cases ideas are analysed through the documents generated in relation to the COI and in interviews with key

Theories of Policy Change  33

informants. To some degree each author integrates narrative policy analysis into traditional policy change theory. However, it is difficult to isolate and separate ideas from actors, ­institutions, and relations. Indeed, a discursive institutional approach focuses on the role of ideas in shaping institutions and how ideas are communicated and affect behaviour of individuals within those institutions (Peters 2012, 112). The “ideas are largely the ideas that are generated discursively by the participants in the institution” (116) and “the greater the diversity of the participants in the process, the more likely that there will be changes in those preferences” (122). Thus, ideas are interconnected with both institutions and actors. The cultural context and ideational or ideological bent of politicians, public servants, citizens, or organized interests may have considerable influence on their decisions, resource allocations, access, and degree of engagement. Institutions are often the source of ideas for the individuals who embody them. It is institutions to which we now turn. Institutions Institutions are defined here to include the formal institutions of the Canadian political system, beginning with the Constitution, federalism and the division of powers, and the Charter of Rights and Freedoms. It also includes the political and administrative institutions of Canadian governments – the executive, legislative, and judicial branches of government. Institutional resources include the fiscal, human, and knowledge resources endowed in these institutions, such as budgets, personnel, and research capacity (Inwood, Johns, and O’Reilly 2011). Neo-institutionalism situates institutions as key analytical variables that structure the policy process to determine, among other factors, relative openness to societal actors. Neo-institutionalism is a useful approach that examines the way institutional arrangements shape political behaviour (Peters 1999). Indeed, institutional rules, practices, and value systems, because they influence and often constrain the behaviour of policy actors, are of utmost importance when investigating why policy change occurs. Historical institutionalism, in particular, has been especially instructive in revealing how institutions mediate politics (Thelen and Steinmo 1992, 3; Thelen 1999) and in highlighting how past choices often hinder future policy and program reforms or institutional change (Pierson and Skocpol 2002). Policy trajectories and path dependencies are of particular utility in explaining state action or inaction.

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Neo-institutionalist theories of bureaucracy and public administration also focus on institutional durability. They maintain the legitimacy of administrative experts in liberal constitutional democracies (Stivers 2002, 41–50). By doing so, the appearance of bureaucratic objectivity is ensured, so that the state seems to act as a neutral arbiter applying public policies equally to all citizens. In the rational-legal bureaucratic context of the liberal state, practices, and policy language are assumed to be neutral and unproblematic. But feminist institutionalists, for example, argue that state institutions, including the rational-legal bureaucratic institutions, are not neutral, that the state works to the benefit of certain interests, and that this must be recognized in institutional analysis (Chappell 2002). What all contributors to this study agree on is that institutions matter. Institutions exist prior to a COI, the COI itself is a temporary or intervening institution, and institutional change can often be observed after the COI. Cairns argues, “Each commission commences with a clean slate” (Cairns 1990, 91), but as an institution of the state it is connected to other institutions of the state that do have policy histories and preferences. Cairns also compares COIs to regular bureaucratic bodies and finds significant differences: “The royal commission is a bureaucracy with a difference. Its ephemeral existence, absence of routinization, task specificity and independent status distinguish it from the ongoing departments of government with their permanent staff, bureaucratic memory, subordination to political authority and enduring institutional concerns for their own survival and future strength” (91). In each of the policy areas of concern related to the COIs in this book, there were a variety of institutional arrangements and forums prior to the COI. Some evolved post-COI, others were explicitly recommended by the COI. These arrangements exhibit varying degrees of institutionalization and involve a variety of state and societal actors. The point here is to examine the recommended and actual shifts in institutionalization pre- and post-COI. Moreover, since the COI itself constitutes a form of insti­tutionalization, it exhibits its own particular institutional characteristics (number of commissioners, size of budgets, size of research component, capacity to engage the public, etc.). This, too, forms part of the story of the role and impact of COIs. A focus on institutions raises interesting questions about the relationship between institutional capacity inside and outside the COI, and its role and capacity to bring about policy change. In order to examine policy change, it is “the contingent effects of institutions” that are emphasized here – “the ways in which the impacts

Theories of Policy Change  35

of institutions are conditional on other variables such as ideas and interests” (Harrison 2002, 68) and – we would add –- relations. Institutions formalize and legitimize norms that become cognitive frameworks that orient policy actors (Lee and Perl 2003, 7–8). COIs offer an institutional policy space, although temporary, that is apart from the confines of the conventional policy development process facilitating interactions between government and social actors to engage in policy change. They are endogenous to the institutional context but are also atypical “venues” in which to examine policy change (Howlett, Ramesh, and Perl 2009). COIs are policy arenas in which actors are engaged and have potential to influence policy change. Actors For the purposes of this study, actors include state and non-state actors who inhabit the Canadian political system (Inwood, Johns, and O’Reilly 2011). State and societal policy stakeholders, some with direct and others with indirect and marginal influence, all have a political investment in problem definition and policy change (Kingdon 1995, 110). State actors include elected officials and unelected career public servants. Included here are political actors such as prime ministers and premiers, ministers, and their political aides. Also included are administrative actors under the executive branch: the career officials who have responsibility for the policy areas our COIs investigate from central agencies, line departments, agencies, boards, commissions, and so on. Societal actors include individuals, interest groups, political parties, scientists, experts, citizens, the public, and the media. The conceptualization thus includes individuals, groups, and coalitions of actors. The emphasis here is on who is defining the problem and who the problem owners are (Gusfield 1981, 10–11). As outlined in problem definition, punctuated equilibrium, and advocacy coalition theories, event-triggered issue expansion results in groups trying to move their preferred ideas from the system agenda to the institutional agenda (Cobb and Elder 1983), and at the same time, status-quo oriented groups seek to prevent the promotion of new or different problem definitions that they find detrimental to their interests (Birkland 1998, 55–6). Research on advocacy coalition approaches has shown that actors can modify their belief structures through “policy-oriented learning” and/or through “external perturbations or shocks” (Sabatier and Weible 2007, 198–9). Clearly a focus on actors is central to this approach. Where COIs are concerned, key actors include the commissioner(s), COI staff, researchers, the public, and the media.

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Commissioners The role of commissioner, needless to say, is vital to the overall workings of any COI. As one former commissioner observed, “A public inquiry commissioner may combine a number of roles: that of a fact-finder, like a judge; a proposer for policy reform; a healer for traumatized communities; and a manager with responsibility for budgets and an administrative and legal staff” (O’Connor 2007). The process of appointing commissioners is often made “in a disorderly way” (see D’Ombrain 1997, 93–4). The challenge of locating such individuals is complicated by the delicacy of finding commissioners whose backgrounds do not overtly suggest preordained conclusions, or those whose participation would result in making it nearly impossible to reach agreements. This can be exacerbated when governments appoint commissioners who represent particular constit­ uencies rather than on the basis of their expertise (Scala 2008, 106). However, this notion must be counterpoised with the observation that sometimes governments deliberately select commissioners to support their predetermined policy positions and preferred outcomes. Similarly the question of the representativeness of commissioners of the broader society is an ongoing issue. For the most part, these actors are Canadian, but in the late 1930s, British experts were first sought out as commissioners for the Royal Commission on Federal-Provincial Relations and, when none were found suitable, Americans and even Australians were considered before finally settling on Canadians (Ferguson and Wardhaugh 2003, 557). Other COIs have included commissioners from other jurisdictions. This representativeness and diversity of actors is sometimes a factor in deciding to have more than one commissioner. To be representative is a laudable goal, but to be representative may also invite such disparate voices onto the commission as to create deadlock. Moreover, given that commissioners are appointed by executive order, the taint of partisanship is always possible, undermining the perceived objectivity and legitimacy of a COI. Partisanship here could mean the political affiliations of appointed commissioners or, more frequently, the concern that commissioners will seek to serve the partisan interests of the governing party (see Aucoin 1990, 205). Resort is often made to hiring a judge as the head actor in a COI, particularly of the investigative variety (see Courtney 1969). The aura of objectivity and independence is created and adds credibility to the undertaking. For policy advisory commissions, a former politician or

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highly regarded public figure (not excluding judges) is usually the choice for commissioner (or chair, if there is more than one commissioner). The selection of the lead actor or actors is also critical, in that this can influence the appointment of other actors to the COI.

Commission Staff The other actors engaged with the COI can also have an influence on policy change. For the purposes of running a COI, staff must be found. This can be a surprisingly ad hoc affair. There is no ongoing roster of experienced and seasoned veterans of the COI process on which to draw. As Cairns points out, “A royal commission is made up of a temporary assemblage of personnel drawn from many backgrounds. They have only a short-term commitment to each other, to the organization and to their common task. They are often on loan from other employers and they cannot be indifferent to their post-commission existence” (Cairns 1990, 91). Each COI begins essentially by searching out staff wherever it can. The Privy Council Office assumes responsibility for administrative support and helps the COI establish a preliminary budget and hire personnel (D’Ombrain 1997, 94). Typically, staff are often seconded from government; others are brought in from law firms, academe, or the private sector. Geography once again is another factor in staffing; that is, the location of an inquiry may have some bearing on who is selected to work on it. The most important staff person on a COI is the executive administrator. Wilson notes, “The chairman of a commission is the deputy head under the appropriate Minister and as such is the chief executive of the commission. Under him, it is most important that a well-qualified executive officer (whether called executive director, executive secretary or some other title) be appointed to assist the commissioners and to guide the dayto-day operations of the commission” (Wilson, cited in Grenville 1990, 52). For investigative COIs, the commissioners and executive typically appoint a commission counsel to question witnesses, whereas with policy advisory COIs, the commissioners themselves generally handle such duties. The commission counsel acts at the behest of the chair and can be instructed to carry out any duties articulated in the terms of reference (Sopinka 1990, 77). This includes identifying potential witnesses, obtaining relevant documentation, setting out rules of procedure, and outlining the matters into which the COI will delve at the opening of the commission hearings. It is generally regarded, however, that the counsel should not assist in the writing of the final report. As Sopinka

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colourfully put it, “A commissioner who intends to enlist the aid of his counsel in preparing the report must, therefore, bear in mind that if he allows his gladiator to thrash about in the arena, the latter’s transition to the dais may evoke a public clamor” (85). In some cases these actors have the potential to influence policy change.

Researchers As John Maynard Keynes famously wrote, “The ideas of economists and political philosophers, both when they are right and when they are wrong, are more powerful than is commonly understood” (Keynes 1936, 383). As noted above, these ideas are transmitted through the mechanism of COIs in the research component. Here, social scientists contribute data, information, interpretations, and knowledge to the enterprise. The researchers themselves as actors can have an important influence on a given COI and any resulting policy change. Since the middle of the twentieth century, the state has sought “expert” knowledge in its deliberations, including within COIs. The designation of “expert” confers a status upon the researchers and speaks to the character of their contribution. It is assumed that these actors will have useable and valuable ideas to contribute. However, these ideas are at least partly a function of their academic background and training, and the associated ideological and methodological paradigms within which these actors are trained and function. While it is often assumed that the social science knowledge that is obtained is “scientific” and therefore neutral, in fact the role of intellectuals and their impact on society is contentious (see Salter 2003; and Brooks and Gagnon 1988). For instance, which academic disciplines are chosen for a COI is an important consideration, since the compartmentalization of the social sciences into discrete fields means that some types of knowledge are potentially privileged over others. The number of researchers, their budget, and the time afforded them to conduct research all condition their influence. The role of researchers in contributing to the commissioners’ deliberations for the final report is also an important factor that can shape the effect of the COI on policy change.

The Public Involvement of the public has become a central feature of COIs. For some analysts this represents one of the most fundamental opportunities for policy change. COIs have almost always engaged or consulted the organized public in the form of groups. Broad citizen engagement

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has also been a central feature of many COIs. Whether the COI is investigative or policy advisory, the literature notes that the role of the public is seriously debated and discussed in the preparatory stages of the COI’s life, and considerable energy is devoted to manifesting public participation to whatever extent the COI considers necessary. Salter has suggested, “The inquiry is a particularly complex and interesting phenomenon in the political life of western democracies. It offers the public an unlimited opportunity for experiencing direct democracy, that is, widespread political participation in the formation of specific policies. It offers an opportunity to define specific public issues, in the public view, with the participation of the clients of those policies. It provides an avenue for a public investigation of public and private conduct, far in excess of that conducted by the Ombudsmen” (Salter 1990, 174; 2007; and Jenson 1994). But as noted above, a tension can easily emerge over whether COIs are merely reformist or radical, and this can be related to the participation of the public in a COI. It has been suggested that more reformist proposals are likely to emerge from the research component, but that public participation can foster more far-reaching ideas (Salter 1990). How to balance these inputs is an ongoing dilemma. Recent changes in Canadian political culture have led to concern over the extent of public participation in political life generally. Participatory democracy and the “cult of openness” (Willis, cited in MacKay 1990, 46) emerged in the 1960s and 1970s. Later, analysts spoke of a “democratic deficit” in politics, leading to demands for greater public access to political decision-making and the formulation of public policy. The guarantees of the Charter of Rights and Freedoms and the proliferation of freedom of information legislation in addition have fuelled demands for fair treatment and due process, which, when abused, may be placed under the microscope of COIs. COIs are seen as suitable to serve this growing demand and democratic deficit, although it has been cautioned that “it is often the voices of the least-informed and the most self-seeking that are the loudest” (Willis 1973, 99). The increasing use of information and communication technologies has made public engagement in COIs easier, both directly in the form of initiatives of various COIs and indirectly through the expansion of potential actors through the media.

The Media The media, of course, play a role in the public perception of inquiries, but what is less clear is what role the media play in relation to a given

40  Commissions of Inquiry and Policy Change

COI and policy change. Whether or not the media have “a natural love affair with commissions of inquiry” (MacKay 1990, 45), commissioners need to be cognizant of the role of the media. It can educate the public about the process and substance of COIs, disseminate information, and gauge public interest about a given policy change. MacKay concludes, “A good working relationships between the media and the commission is vital to the success of the policy mandate” (45; see also Perreault 2006). In sum, where actors are concerned, there is an assumption that in most policy areas there is a “policy monopoly” in which actors in policy subsystems control the interpretation of the problem and thus the manner in which it is conceived and discussed (Baumgartner and Jones 1991, 1993). Altering the venue of the policy debate is one way to alter the policy image and thereby undermine the stability of the policy monopoly (Howlett and Ramesh 2003, 137). COIs can alter the venue by underpinning actor and expert consensus, political mobilization, and bureaucratic reorganization (Bradford 1998, 20). In addition, COIs can have an impact on the identity of groups and social movements (Orsini 2002b, 498). COIs are like “mobilizations,” allowing new actors to challenge the existing policy subsystem (True, Jones, and Baumgartner 2007, 157). As Jenson reminds us, public inquiries “have not simply listened to the expression of interests by groups: they have also contributed to the way that we subsequently conceptualized our interests and collective identities” (Jenson 1994, 45). As well as providing a venue for the powerful and well organized, to varying degrees COIs give marginalized groups and individuals the opportunity to have their voices heard. As Aucoin explains, “The requirement that commissions actively seek out the broadest range of interested and affected parties constitutes an e­ ssential condition for commissions providing policy analyses that contain added value to those done within the regular structures of government” (Aucoin 1990, 201). Put another way, Salter explains that at the heart of the public inquiry process is a struggle to define exactly what constitutes “the public” and exactly how far an inquiry should go in locating this elusive public and, by extension, the “public interest” (Salter 2007). Actors within each COI are important here as well, from the chair, to the executive director, to legal counsel, to COI staff, to researchers, to the “holders of the pen” for the final report. Our approach is to view these various actors as potentially influencing policy change and then assess across cases if some seem to be more significant than others in determining the scope and degree of policy change.

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Relations Interpersonal relations are also seen as key factors in theories of policy change. One such theory focuses on policy entrepreneurship. Kingdon (1984) and Mintrom (1997) have demonstrated the significance that policy entrepreneurs can have as advocates of policy change. A focus on relations “foregrounds policy entrepreneurship as an explanation of policy change” (Mintrom and Norman 2009, 649). Policy entrepreneurs are those who desire to significantly change the policy status quo or take advantage of what Kingdon calls “windows of opportunity” for change (Kingdon 1995). A “key part of policy entrepreneurship involves seizing moments to promote change,” and “such action requires creativity, energy and political skill” (Mintrom and Norman 2009, 650). The idea is that policy actors who have good relations with others and are well connected in the policy context achieve more success in securing policy change (652). Traditionally the focus has been on tracking aggressive and obvious agents of change. Yet actors can also be passive and subtle. In defining relations, we use a two-way typology of formal and informal relations (see Inwood, Johns, and O’Reilly 2011). Formal relations include the individual roles, responsibilities, and behaviours of individuals. These are influenced by the given institutional context through a “logic of appropriateness” (March and Olsen 1989, 2004) that is sometimes formal and sometimes informal. Some of these relations (in federalism, or in democratic systems, for example) presume a formal equality of the players, but sometimes hierarchies and asymmetries of power have also been embedded. These formal relations are generally delineated by constitutional parameters, parliamentary government, and federalism. They also involve relations between the ­political and administrative arms of the system as well as between the  legislative, executive, and judicial branches of government. This includes power relations within the government, its central agencies such as the Prime Minister’s or Premier’s Office, Privy Council Office or Cabinet Office, Cabinet, or a minister. Depending on its hierarchical position, any of these theoretically affects the role of the COI, its mandate, its terms of reference, its life, and ultimately its potential for ­policy change. The federal government cancellation of the Somalia Inquiry illustrates how significant formal relations can be for COIs (see Desbarats 1997). The formality of the relationship between a COI and the government it reports to can have significant effect on its ultimate role in policy change.

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Informal relationships are the less visible personal ties and connections between state and/or societal actors, which are significant in public policy. Informal personal relationships are played out in less institutionalized, unstructured, ad hoc personal meetings, contacts, telephone and conference calls, emails, and lunches, where fuzzy concepts such as friendship, trust, respect, and leadership reside (Inwood, Johns, and O’Reilly 2011). While informal relationships are not well incorporated into contemporary policy studies, individuals often give testimony to their importance in the policy process and policy change. The character of their informal interpersonal relationships can influence relations between the government and the COI, as well as the internal workings of the COI. The personalities of leaders and other individuals and whether their relationships are smooth or disputatious are also potentially important. Focusing on informal relationships reveals if and how individuals make a difference. Key actors and their personal relationships have been shown to matter in terms of COI “success.” As noted by Lauriat, “In some cases, a very close study of a royal commission combined with thorough biographical research on its members can provide valuable insights” (Lauriat 2010, 38). Though difficult to tease out and isolate from the institutions in which individuals act, a focus on relations allows for an analysis of the character and connectivity of individuals to each other. To empirically observe how significant relations are for policy change, each contributor examines and documents the role of key individuals and their formal and informal relations. Methodology As outlined in chapter 1, “Where one has acknowledged the historical value of the institution generally, the value of studying individual royal commissions in close detail becomes apparent” (Lauriat 2010, 38). Indi­ vidually COIs are a challenge. As Lauriat asserts, “There are obvious challenges to studying these bodies, which set their own procedures, are appointed for a wide variety of reasons, and have results which are difficult to identify, let alone assess” (28). The challenge is even more ­daunting when comparing cases. Comparative analysis provides the opportunity to move beyond the individual analysis of s­ elect COIs and extend both our knowledge of COIs and policy change. Comparing ideas, institutions, actors, and relations provides insight into the role of COIs in policy change and policy change more broadly. This also requires

Theories of Policy Change  43

treading carefully because there is considerable variation across COIs. As Salter and Slaco note, “Inquiries differ amongst themselves. Even Royal Commissions of the same government differ with respect to the questions under discussion, the procedures used, the way subjects are treated, and the role of the public. Any comparison that did not focus on the differences would inevitably be a shallow study. Yet it is also important to demonstrate what they have in common” (Salter and Slaco 1981, 25). Ten COIs were selected for this study. Given that there have been over 450 COIs at the federal level alone, a significant number of cases could have been included in this analysis. As outlined in chapter 1, the cases were not randomly selected, as the editors and contributors felt capturing a mix of COIs concerned with major economic, social, legal, and environmental issues over a span of time would allow for a robust comparative analysis. It was decided that the post–Second World War period provided the most fertile ground for a study of COIs with the deepest relevance to the contemporary state of policymaking. The case selection was also a function of research expertise. As outlined in the preface and chapter 1, the initial case selection was based on bringing together policy scholars who had published or engaged in  scholarly research and analysis of individual COIs. At a Canadian Political Science Association (CPSA) roundtable in 2009, several cases were identified that would provide interesting dimensions of comparison in the context of theories of policy change. The editors wanted to ensure the COIs covered a broad range of time, different governments, different policy areas, and different degrees of ‘success’ as previously characterized in the COI literature. Several additional scholars were approached and provided with the comparative analytical framework to generate the research papers for a second CPSA conference in 2010. The final case selection was based on the papers presented at this conference. Authors subsequently revised their papers, rigorously deploying the comparative analytical framework to extend their analysis and examine the role of COIs in policy change. The COI cases are listed chronologically in table 2.1. The first dimension of comparison among the cases is across different time periods and historical contexts. This is important, as the policy process itself has changed significantly over time. The policy theory and analysis literature in Canada clearly documents how the contours of policy knowledge and advice have changed across the several decades covered by the ten COIs. Some earlier COIs did their work during periods when legislatures were central in policymaking and when there were no or

44  Commissions of Inquiry and Policy Change Table 2.1 Commissions of Inquiry Included in This Study Shorthand name of commission Gordon Commission Status of Women Berger Inquiry Macdonald Commission Reproductive Technologies Aboriginal Peoples Commission, RCAP Krever Inquiry Romanow Commission Walkerton Inquiry Goudge Inquiry

Formal title and date of final report Royal Commission on Canada’s Economic Prospects, 1957 Royal Commission on the Status of Women, 1970 Mackenzie Valley Pipeline Inquiry, 1974 Royal Commission on the Economic Union and Development Prospects for Canada, 1985 Royal Commission on New Reproductive Technologies, 1993 Royal Commission on Aboriginal Peoples, 1996 Commission of Inquiry on the Blood System in Canada, 1997 Commission on the Future of Health Care in Canada, 2002 Walkerton Commission of Inquiry, 2002 Inquiry into Paediatric Forensic Pathology in Ontario, 2008

few think tanks, departmental policy branches, or permanent advisory councils. More recent COIs have been established in periods when the executive branch and a broader range of societal actors has become more involved in the policy process. Thus it might be expected that assessing policy impact might be quite different in simpler earlier policy institutional configurations than in more recent, more complex policy environments. For example, the widening array of policy advisory sources has been documented in many Canadian public policy texts (Doern and Phidd 1983, 1992; Howlett, Ramesh, and Perl 2009; Pal 2010). Yet COIs are scarcely even mentioned in policy texts. Although this represents a challenge in assessing causal policy impacts on earlier versus later COIs, a temporal dimension of analysis can be included by focusing on cases over different policy time periods. The cases included in this analysis also represent a mix of policy advisory and investigative COIs. Given the assumption that both types have the potential for policy change, it was thought important to include both types. Including both types also highlights the fact that lines between types of COIs are sometimes blurred. Indeed, some of the more recent COIs are hybrids of policy advisory and investigative types. In addition to the distinction in types of COI, we also included federal and provincial, large and small, broad and narrow COIs, which deal with a mix of social, economic, legal, and environmental policy problems.

Theories of Policy Change  45

Examining, Analysing, and Comparing Commissions of Inquiry and Policy Change As noted in chapter 1, the first assumption underpinning this analysis is that neo-institutionalism and historical institutionalism are common theoretical starting points for contributors to this book. The second assumption is that policy change is complex, dynamic, and multifaceted. And the third assumption is that a decade or more is a suitable period in which to examine policy change (Sabatier 2007). With these starting points, each contributor has analysed a specific COI using the analytical framework outlined above. Where it becomes more complex is isolating what exactly changed as a result of the influence of a given COI and what mix of factors influenced the change. In some cases it is clear that new policies originated with and can be directly attributed to the COI; in other cases the change is more subtle and indirectly attributable to the COI. Indeed, change may not occur for long periods of time, whether it is in goals, the policy process, instruments, or a shift in power relations. To examine ideas, institutions, actors, and relations and what role COIs play in policy change, it is critical to assess both the external and internal dynamics related to a given COI. As noted above, COIs to some degree open the traditional black box to empirical observation, as many features of COIs are public. The final reports are a valuable resource for scholars to analyse COIs. Documents, mandates, and terms of reference, budgets, research papers, transcripts of hearings, submissions by stakeholders and “parties with standing,” legal submissions, and public submissions are all accessible for scholarly analysis. COIs established in recent years have also made sources and processes more transparent through the use of the Internet and other information and communication technologies, making some of the text available digitally. In addition there are visual and text-based media materials related to coverage of a given COI, as well as the odd published memoir of actors who worked on COIs. Interviews with key informants are another key source of information. Although many documents are generated by COIs, there are many aspects of COIs that are not recorded. COI scholarship has demonstrated the significance of the interview method in analysing important dimensions of COIs. The informal components of COIs, how and why commissioners are selected, how staffing and research agenda decisions are made, and power struggles between actors are just a few examples of information on COIs that are not well documented by the inquiries

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themselves. For this reason, many of the contributors in this book have used key informant interviews with both state and societal actors. Finally, several of the contributors in this book have been participants in the COIs they are writing about, or in other COIs. While this may have some impact on impartiality, the unstructured use of participant observation allows the authors to add the depth of their expertise to assess policy change using the framework of ideas, institutions, actors, and relations. Combined with the documentary analysis and key informant interviews, participant observation in selected cases allows additional insights into the three key questions analysed here. To compare COIs and their role in policy change, the editors and contributors to this book recognize the necessity of a comparison that highlights the wide range of forms and paces at which policy change takes place. We see a policy process that is dynamic and uncertain. We assume policy change ranges from gradual (sometimes taking decades to be observed) to immediate. It occurs on various levels and can take different forms. In some cases policy change is diffused and evolutionary, while in other cases it is transformative. A continuum in the pace, scope, and depth of change is presented here, mirroring Hall’s three levels or orders of change (Hall 1993). Table 2.2 presents a basic typology in keeping with policy change models (see Capano and Howlett 2009). It focuses on the significance of the change (from transformative and direct, to transformative but ­diffused, to marginal and limited), proximity of the change (direct or diffuse), pace of change (the temporal dimension from immediate and short term to more gradual over the medium or long term), and scope or degree of change (from broad changes to no or very minimal observable changes in ideas, institutions, actors, and relations before and after a given COI). Shortterm policy change is defined as the immediate years following the COI; medium means within ten years following a COI; and longer-term means more than ten years after a given COI. This classification framework allows us to characterize three broad types of policy change and focus on the evidence from the various cases. A comparative analysis of the cases also allows for a simultaneous focus on both endogenous and exogenous interventions. We assess policy change using three categories (see table 2.2): 1 Transformative and direct: Some change is profound, substantive, and fundamental, and alters the trajectory of public policy. For a given COI to exhibit that it has contributed to deep transformative change

Theories of Policy Change  47 Table 2.2 Classification of Policy Change Related to COIs Type of policy change

Evidence

Transformative and direct

Policy change evident in ideas, institutions, actors, and relations that are directly attributable to the COI; profound and fundamental alterations to policy after the COI; evident in the short or medium term

Transformative but diffuse

Gradual changes evident in all or some of ideas, institutions, actors, and relations; some directly attributable to the COI; some elements changed, others not; evidence of change over the medium or long term

Marginal and limited

Very limited or no change observable in ideas, institutions, actors, or relations; little evidence of change in the short, medium, or long term after the COI

requires some observable alteration in all or some of the ideas, institutions, actors, and relations leading to policy change. 2 Transformative but diffuse: Some policy change is experienced after a time lag. Governments may delay implementation and gradually adopt new policy over several years or even decades. Nonetheless, alterations to public policy can result that are attributable to the impact of a given COI on ideas, institutions, actors, and/or relations. 3 Marginal and limited: Certain policy prescriptions may hold great promise according to the COI, but the government does not act upon them. Or perhaps they are shelved altogether. Stasis is the result. Whatever the role of ideas, institutions, actors, and relations in the COI, there is no observable effect on policy change resulting from the COI. Comparative analysis across ten different COIs allows us to explore changes in ideas, institutions, actors, and relations and analyse whether change in one of these dimensions alone is significant enough to lead to observable policy change, or whether there must be change on all four fronts to indicate the likeliness of change as well as the degree of change. In chapter 13 we compare across the ten cases and various dimensions (ideas, institutions, actors, and relations) before and after each COI and return to this three-category classification. Each of the following chapters presents a detailed examination of the COIs listed in table 2.1. We have organized the cases in chronological order, starting with the Gordon Commission, a very broad, traditional

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policy advisory COI, and ending with the Goudge Inquiry, a more recent, narrow investigative COI. In the concluding chapter we summarize the findings, examine the variation across cases, locate each COI on our continuum of policy change, and comparatively analyse the degree to which changes in ideas, institutions, actors, and relations can be attributed to the COI. We then return to our central research questions: What role do COIs play in policy change? Would policy change likely have occurred without the COI? Why do some COIs result in policy change and others do not?

3 Structuring Canada’s National Policy Debate: The Royal Commission on Canada’s Economic Prospects Neil Bradford

Introduction The Royal Commission on Canada’s Economic Prospects (RCCEP) is an often overlooked policy inquiry. Conducted in the comparatively quiet decade of the 1950s, it falls in the shadow of the two era-defining commissions that bookend its work – the 1930s Royal Commission on Dominion Provincial Relations (Rowell-Sirois Commission) that led Canada into the Keynesian age, and the 1980s Royal Commission on the Economic Union and Development Prospects for Canada (Macdonald Commission, discussed in chapter 6) that ushered in neoliberalism. Not associated with any such political realignments, or even a memorable policy innovation, the RCCEP has received only passing attention from scholars of royal commissions and historians of Canadian economic policy (Bradford 1998). The purpose of this chapter is to revisit the RCCEP and reconsider its significance. We find that it did contribute to federal economic policy change but not through any rationalist process whereby a compelling reform package was delivered to a receptive government intent on rapid implementation. On the contrary, the RCCEP’s path to influence was marginal and limited, like that of the Royal Commission on Aboriginal Peoples and the Romanow Commission (see chapters 8 and 10 in this volume). The RCCEP’s influence extended over a decade as opposed schools of economic policy thought, each finding initial expression in the commission itself, contested the inquiry’s policy legacy. Proper understanding of the RCCEP therefore requires close attention first to internal commission dynamics, specifically the way in which key actors and their ideas clashed to produce an ambiguous report, and second to post-commission relations as different expert communities mobilized

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in federal policymaking institutions. Thus, we argue that the RCCEP’s importance for policy change resides in its structuring of post-war Canada’s “national policy debate.” Not only did it set the substantive terms of debate between the liberal continentalist and the interventionist nationalist schools of thought, it also supplied many of the leading public intellectuals for both sides. Our rereading of the RCCEP proceeds in three stages. We begin by describing the economic and political conditions shaping its appointment in 1955, and the expectations that surrounded its policy work. Next we explore the interplay of ideas, institutions, actors, and relations outside and within the commission, highlighting tensions between Chairman Walter Gordon and the research team compromising post-war Canada’s “best and brightest” economists. Then we consider the RCCEP’s policy impact and intellectual legacy, tracking social learning processes through the new institutions and altered relations that shaped federal economic policy development in the 1960s. The chapter closes with brief theoretical and historical reflection on the RCCEP’s role as an agent of change in Canadian economic policy.

Appointing the Commission: From Bureaucratic Consensus to Policy Uncertainty The decade following the Second World War was a prosperous one for Canada. Although not without its ups and downs, the Canadian economy’s performance met most of the employment and income goals set out in the 1945 White Paper framework (Campbell 1987). Across this period, national unemployment figures remained below 3 per cent, with the various components of aggregate demand – particularly business investment and consumer spending – remaining buoyant. Private capital formation surged as American corporations, encouraged by Canadian tax and investment policy, established many branch plants in manufacturing and natural resource sectors. In the early 1950s, the Korean War and the Cold War sustained these demand pressures, and an economic policy consensus was confirmed, featuring macroeconomic anti-­inflationary priorities and microeconomic focus on corporate production incentives. The regional and class tensions from the Great Depression years receded as the North American economic boom and the redistributive effects of Keynesian policies spread prosperity. Canada’s version of the post-war policy settlement was in place, with its particular blend of Keynesian stabilization and continental integration (Bradford 1998).

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However, the second half of the 1950s proved quite different, both in economic conditions and policy atmosphere (Campbell 1987). In these years, conflict erupted over some of the basic post-war assumptions, ­triggered by the sudden economic downturn beginning in 1953. In 1954, Canada experienced negative growth. Business investment fell in real terms, as did per capita income, by almost 6 per cent. Unemployment more than doubled from its post-1945 2 per cent range to over 5 per cent. Canada’s precarious financial accounts with the rest of the world slid into serious imbalance, as the debt-creating dynamics of trading raw materials for American manufactured goods and capital equipment intensified. Government surveys of investment patterns began to track rising levels of foreign ownership across key manufacturing and resource sectors. While the statistical indicators of Canada’s deteriorating economic performance were clear enough, much less evident were appropriate policy responses. By 1955, there was a growing sense that some of the basic assumptions of the post-war policy framework were due for examination. In 1955, these different threads came together when businessman and well-connected Liberal Walter Gordon decided to write about the economic downturn in a broader discussion of Canada’s long-term development prospects. Concerned by rising levels of foreign investment, Gordon produced a draft article that proposed new policies for greater domestic participation in resource development and secondary manufacturing. Recognizing that the existing bureaucracy and Cabinet were unlikely vehicles for such innovation, Gordon proposed a royal commission on the economy. Gordon gave advance warning to Finance Minister Walter Harris of his plans to publish the ideas in a high-profile policy journal. In a move that was dismissed by the Cabinet’s senior economic minister, C.D. Howe, as “one of the silly tricks” of what he called the Liberal “Junior Leaguers,” Harris invited Gordon to lead an economic commission of inquiry (Kent 1958). On 17 June 1955 the Royal Commission on Canada’s Economic Pros­ pects was established. The commission featured an open-ended mandate seeking broad economic policy advice based on analysis and projections over a twenty-five-year period of Canada’s “productive capacity, the growth and distribution of the population, the direction and nature of our internal and external trade, progress in standards of living and expanding requirements for industrial and social capital” (RCCEP 1958, 471–2). The focus was on the “long-term prospects of the Canadian economy … and the problems to which such development appears likely to give rise.”

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Ideas: Liberal Continentalism versus Interventionist Nationalism The commission announcement was generally welcomed, and there were some lofty expectations for its work. The dean of Ottawa journalists, Bruce Hutchison, noted that “the political system has not produced a single idea of importance in 10 years” and that the commission’s report could “deeply alter the future not only of party politics but of the Canadian state” (Hutchison 1955). For its part, the country’s main business voice, the Financial Post, welcomed the focus on growth and development rather than simply short-term stabilization. Underscoring the significance of the commission’s work, the business journalist Michael Barkway challenged the commissioners to answer “a fundamental question” – is Canada’s economy “another Saudi Arabia collecting royalties on oil which we cannot use ourselves, or are we increasingly growing into a ‘mature’ developed economy?” (Barkway 1956). The RCCEP produced four conceptual breakthroughs on the federal economic policy framework.1 Most fundamentally, it portrayed post-war Canada as a promising yet somewhat precarious national economic space within North America, its development shaped by strong continental and regional forces that posed ongoing adjustment challenges. It made the case for adding to the prevailing Keynesian short-term demand-management orientation, a longer-term developmental approach addressing industrial productivity and research-driven innovation. Further, it emphasized that policy leadership in future “modes of adjustment” resided with the federal government, warning that any “abdication of responsibility” to the provinces involved very serious consequences (RCCEP 1958, 12, 434). Finally, the RCCEP identified Canada’s key adjustment challenge to be capital formation – the timely mobilization of investment for “large-scale projects requiring a concentration of equity capital on which no immediate returns may be expected” but that were essential for Canada’s “growth and development as a modern industrial nation” (378, 400). This challenge cut across all the specific developmental opportunities detailed by the RCCEP, ranging from municipal infrastructure and post-secondary education to industrial research facilities and raw materials processing. Here, the RCCEP’s core question came into focus: which federal economic policies would ensure adequate “industrial and social capital”? In answering this question, the RCCEP’s complexity comes into focus. It pursued simultaneously two distinct lines of argument, each rooted in particular policy discourses of economic development (Kent 1958; Bradford 1998).

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The first of these was resolutely optimistic, emphasizing that the “economic system has a high capacity for successful adjustment” (RCCEP 1958, 369). Canada’s prime development vehicle was foreign direct investment, supplying the “combination of money, technology, skills and markets, without which the Canadian economy would have been developed much more slowly and less efficiently” (386). From this perspective, the government should limit itself to generally available incentives for firms to modernize their production and for workers to upgrade their skills or relocate. Above all, the temptation “to tinker too much with the tax structure or to make changes indiscriminately” must be resisted, since such interventions reflected “the stuff of politics” not sound economics (432, 433). Praising Canada’s favourable “investment climate” and the “positive encouragement by all levels of government that have helped to make this country an attractive outlet for private foreign capital,” it warned that “adoption of policies designed to interfere with, or to frustrate, the natural flow of trade or of economic development could reduce or nullify the optimistic forecasts we have made” (385, 457). Limiting the federal government’s economic role to general framework policies, and dismissing concerns about foreign investment, this development discourse can be labelled liberal continentalism. At the same time, the RCCEP gave voice to a second perspective that was less optimistic about the future in the absence of active government. The discussion was recast from self-correcting markets and policy continuity with the observation that “the structure of the Canadian economy can raise economic problems and imposes some limitations on Canadian economic policy” (RCCEP 1958, 374). In addition to markets, other mechanisms and strategies were required to manage the risks and spread the opportunities of development. Foreign direct investment was more a  mixed blessing than a satisfactory answer. First, it was concentrated in  Canada’s strategic manufacturing industries that were the engines of modern growth. Second, its direct rather than portfolio form meant that external economic control would spread and deepen over time, given the “snowballing effect about investments in equities” (383). Third, its notable acceleration in the first post-war decade suggested that Canada’s prosperity was precarious, based not on domestic productivity or exporting but in “the increased ownership and control of Canadian resources by residents of other countries” (317). From this perspective, there was no reason to assume that Canada was moving along the same development trajectory as the United States

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or most other advanced industrial countries, maturing “to the point where it could supply all its own capital requirements” (RCCEP 1958, 388). As such, federal economic policy could not simply provide framework conditions for market-led adjustments. Issues of passing attention in the liberal continentalist discourse moved front and centre: the nationality of economic ownership and its consequences for political independence, local processing of raw materials and linkages with secondary manufacturing, and domestic capital formation for Canadian entrepreneurs. A different role for government was envisioned, involving new uses of familiar policy instruments and the invention of others, including “new mechanisms for concentrating available venture capital and spreading the risks more widely” (379). This discourse can be termed interventionist nationalism, with economic policy reaching well beyond framework policies to tackle domestic ownership, industrial development, and sectoral integration. Institutions: Breaking the Policy Monopoly When the RCCEP was appointed in 1955, a select few federal departments enjoyed a virtual monopoly in policy formulation. Indeed, Canada’s thin policy capacity outside government was a matter of concern to the RCCEP. Acknowledging the quality of statistical material produced by agencies such as the Dominion Bureau of Statistics, the commissioners said, But we believe it will be important to encourage more members of the public, particularly those in university, professional and scientific circles, in finance and business, in organized labour, in farm groups, etc., to follow closely short-term movements in the economy and express their opinions on current policies. Only in this way can those who are in places of authority receive the benefit of fresh and varied points of view … More public discussion and debate about current issues in Canada would be bound to be helpful, providing the participants were reasonably well informed … We would hope that our universities among others will consider that research work in these areas should be one of their most important and continuing responsibilities. (RCCEP 1958, 435, 436)

Design and management of the post-war framework came from a bureaucratic alignment of the Trade and Commerce Department, the Finance Department, the Bank of Canada, and the Dominion Bureau of Statistics.

The Royal Commission on Canada’s Economic Prospects  55

With progressive refinement of the policy tools and database for applied economic analysis, Keynesian ideas served an important organizational function within the federal bureaucracy, providing a shared language that minimized interdepartmental conflict and rivalry. Close links were forged between government officials and a rising cohort of academic economists trained in the discipline’s “neo-classical synthesis,” as noted below. The historical and institutional concerns that distinguished an earlier generation of Canadian political economists were set aside in the highly technical and quantitative models that came to dominate post-war research and policy (Neill 1991). Simon Reisman, one of the movement’s leading policy intellectuals, summarized the technocratic ethos: “Great strides had been made in both the theory and the practice of stabilization policy. We were improving our data base, and the introduction of computer technology extended our capacity to handle masses of information. Very considerable strides were being made in quantitative analysis. The construction of economic models contributed to a better understanding of the complex interactions among the myriad of variables in the economy. These developments appeared at the time to convert the art of economic management into something approaching a science” (Reisman 1981, 192). Guided by this policy science, the Liberals won three majority governments between 1945 and 1953. Prime Minister Louis St Laurent ably positioned the Liberals as competent directors of the economy. He informed the electorate that while there were “no outstanding issues” before the country, the Cabinet was obliged to “submit our accounts to you every few years [and] ask you to look [them] over and draw your own conclusions” (Beck 1968, 277). For their part, opposition political parties struggled to find a distinctive policy voice. The Progressive Conservatives concentrated on what they saw as the government’s arrogance and ­subservience to an unaccountable bureaucracy. Even the Co-operative Commonwealth Federation, long known as a vehicle of policy innovation, appeared “shop-worn” and “largely irrelevant to an economic revolution already performed by other hands” (Hutchison 1955). In short, traditional institutions of governance appeared bereft of new ideas and lacking in initiative to tackle the new challenges of the age. With the recession, “the atmosphere in the national capital began to change drastically” and the “unthinkable happened: doubts arose about the mandarins” (Morgan 1986, 37). Yet one consequence of the longstanding deference to the technocratic experts was a narrowing of alternative policy ideas when economic conditions changed. Policy watchers questioned whether “other centres of power in society – business, labour,

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agriculture, opposition political parties, provincial governments and so on – realize that they themselves need more expert assistance if they are to have an effective voice in policy formation” (Jewett 1965, 357). As Gordon hoped, initial press reaction to the Preliminary Report of his commission was largely favourable. It was reported that the commissioners had “rushed in where politicians fear to tread” (Stursberg 1957) and “stirred up more comment than any other domestic event since the war” (Mowbray 1957, 15). But subsequent analytical reviews focused on the disjunctures and gaps, describing the Preliminary Report as “woolly” and “half baked,” and lacking “any consistent philosophy of resourceoriented growth or even of economic policy” (Azzi 1999, 52–3). Senior members of the civil service “found themselves unable to trace the logic and economic analysis that the Commission had used to reach its conclusions” (Kent 1958). Moreover, the Gordon reports were political duds. On receipt of the Preliminary Report Prime Minister St. Laurent refused to comment on any matters of substance, stating that the document would not inform government policy deliberations. With the Final Report the official reception was no better. While the Diefenbaker government’s Northern Vision aligned with the RCCEP’s interventionist nationalism, the Progressive Conservative prime minister was loath to embrace a product he associated with the discredited Liberal establishment. The government delayed the report’s release for five months and made no public comment on its contents. Still, the Diefenbaker government in its final years passed several interventionist nationalist measures recommended in the RCCEP, including withholding taxes, corporate information disclosure, and an industrial development bank to encourage Canadian investment (Newman 1961; Bradford 1998, 68–9). Actors: Launching Canada’s National Policy Debate By the mid-1950s, Walter Gordon had emerged as an interesting transitional figure in post-war economic policy circles (Azzi 1999). On the one hand, he had been closely involved with the rise of the Keynesian framework, working as an assistant to the deputy minister of Finance in the 1940s. On the other hand, in his business career as a management consultant, he had strong private sector experience and knowledge about the workings of North American capital markets and the particular challenges faced by Canadian businesses in the continental structure. Moving

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easily between public and private sectors, Gordon had also worked on two royal commissions of inquiry, including one as chair.2 Walter Gordon was accompanied by four commissioners from different regions, all with solid academic or business credentials (Bradford 1998).3 However, the other three commissioners assumed quite low profiles throughout the commission process, contributing on particular topics of personal interest or professional expertise. Gordon was the only full-time commissioner, and he recalled that the “other four commissioners agreed to meet from time to time to approve the scope of the inquiry, to attend the public hearings and later on as often as necessary to hammer out the report” (Gordon 1983, 62). With Gordon in command, the commission began its work in earnest with cross-country public hearings from October 1955 to March 1956 with 750 witnesses appearing “to give us the benefit of their views on probable developments within particular fields of interest” (RCCEP 1958, 473). Witnesses included provincial premiers, municipal mayors, government officials, and a range of civil society organizational representatives from business, labour, educational, and social sectors. The commission also followed established Canadian practice for largescale policy inquiries mapping an ambitious research program, under the direction of four of the country’s leading economists, two based in government departments and one each from industry and academy. More than thirty monographs were published on a host of policy topics. Notably, academic experts were recruited from only one discipline, economics. This monopoly reflected the synergies between neoclassical economics and Keynesian public policy in the early post-war period. Many promising young Canadian economists trained in the neoclassical orthodoxy signed on to write studies. The research resources provided by the commission presented a unique opportunity for an intellectual stocktaking and revitalization of the post-war Canadian economics profession (Daub 1987). The commission’s research process also recruited several banks, insurance companies, business and agricultural associations, trade unions, and management consultants to publish studies. The public hearings that took the commissioners across the country over a six-month period generated 330 submissions and featured substantive exchanges between organized interests on the long-term development questions before the commission. Gordon initially questioned the value of the public hearings, but they proved to be an important venue for bringing into focus

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debates about foreign investment (Bradford 1998, 61; Azzi 1999, 43–5). Organized labour and several professional associations representing engineers or researchers expressed a shared concern about the outflow of jobs or career ceilings resulting from American ownership. In response, organizations representing natural resource sectors such as pulp and paper emphasized Canada’s comparative advantage in raw materials and cautioned against any “artificial” attempts to force secondary manufacturing. With such sharp exchanges, the public hearings gathered considerable attention in the media and in Parliament, where the opposition parties began to press the Liberal government on foreign ownership and national economic development. However, the RCCEP’s main legacy plays out well after the initial government indifference. Important here was the way in which the commission’s competing discourses framed a policy debate while also acknowledging the need for more research to inform government decision-making. With its most controversial policy recommendations, the RCCEP conceded it was “treading on somewhat treacherous and uncertain ground” (RCCEP 1958, 392). And there was no argument from the critics: “The Commission’s case was not argued in a way that commanded understanding, let alone agreement” (Kent 1958). Building that understanding and seeking that agreement became major preoccupations for both the liberal continentalists and interventionist nationalists over the next decade. Relations: Forging an Economic Policy Community The RCCEP structured a new national policy debate in several important ways, involving substantive ideas, influential policy actors, and new institutions and relations of policy development. In addition to exhorting private and public sector organizations to invest “more money, more qualified staff and more co-operation” in policy research, the RCCEP recommended creation of a permanent “body of economic experts” similar in mandate and structure to the American Council of Economic Advisers to the President (RCCEP 1958, 436). On policy substance, the RCCEP’s report announced a new consensus on the importance of policies for longer-term economic adjustments, but did so in a way that left unclear a series of issues crucial for policy design. Do American subsidiaries perform differently from Canadianowned firms in exporting, resource processing, input sourcing, research and development, and employee advancement? What is the optimal

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level of tariff protection, and what is the relationship between the tariff and foreign direct investment? How would continental free trade affect the Canadian economy? Is it better to relocate workers from declining areas than attempt to revitalize regions through industrial modernization? Are new mechanisms required for domestic capital formation, and if so, how might they be implemented? Focusing such questions, the RCCEP became the catalyst in the formation of a federal economic policy community ready to research issues and advise governments (Safarian 1965). Most importantly, the RCCEP, as a policy inquiry divided on such substantive questions, gave shape to major debates within the federal economic policy community. The divisions and tensions were most evident in the key recommendations on trade, commercial, and regional policies. Each of these controversial topics was presented in a similar fashion. To begin, the “very real and tangible” benefits associated with liberal continentalism were affirmed, followed by an admission that it was “more difficult to state in similarly precise terms what the dangers are in the present situation” (RCCEP 1958, 389). When it came to recommendations, however, interventionist nationalism carried the day on the grounds that anything less “will create demands for action of an extreme nature” (399). Specific proposals included making accelerated depreciation allowances conditional for foreign firms on their compliance with regulations stipulating Canadian participation in equity stock and senior management, or investment in regions of high unemployment; lowering of withholding tax on dividends paid to non-resident investors; mandating disclosure of financial details on subsidiary-parent company operations in pricing and exporting; legislating Canadian ownership of banks and insurance companies to build up domestic venture capital; and opposing tariff reductions and further continental integration. In support of this package, several new government structures were recommended, including a Department of Industry and a federal agency for regional development in Atlantic Canada. How might this “discursive amalgam” of ideas and recommendations be explained? Answers can be found in the RCCEP’s internal dynamics where differences – both substantive and strategic – separated Walter Gordon and the research team. The researchers believed in the essential soundness of Canada’s development model and the vitality of the established body of economic theory to guide future adjustments. They counselled policy continuity, with the commission’s new research studies strengthening the analytic foundation for government officials

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to manage cyclical flows in aggregate spending while also facilitating longer-term structural adjustments. But this was never Walter Gordon’s vision of the commission. Far from technocratic refurbishing of the embedded framework, Gordon’s project was political renewal through policy innovation. New problems should be recognized, bold solutions brought forward, and policy experimentation encouraged. Further, Gordon was a strong chair, with previous royal commission experience, firm views about economic policy, and a clear sense of how the commission could best achieve influence. In the initial planning stages, Gordon decided the commission priorities, which “meant in effect that almost all the data collected and the opinions expressed in the briefs submitted at the public hearings fitted into some section of a great, predetermined blueprint” (Gordon 1983, 62). The research directors were troubled by such a blueprint, given that in these early planning stages Gordon was also making public statements about the commission’s interest in foreign investment and its implications for Canadian economic development and political independence (Azzi 1999). The differences crystallized during writing of the report. First, Gordon decided to issue a preliminary report in an attempt to influence government election planning, over the strong objections of the researchers who had not yet completed their analytical work, especially in the controversial matters of trade and commercial policy. Gordon’s response was to write these sections himself (Bradford 1998, 64). Second, when it came time to produce the RCCEP’s final report, the tensions resurfaced (Azzi 1999, 61). The research team’s study of the tariff was now ready, and it flatly contradicted the RCCEP’s preliminary report by making the case for tariff reduction and continental free trade. Gordon’s preference was to bury the monograph by Yale University Professor John Young, but, confronted by the researchers, he inserted an editorial commentary that revealed much about the commission’s internal tensions: Most experts in tariff have decided views not only about theory but also about the way theory should be translated into policy, and these views are perhaps bound to be reflected in their writings. The study makes a more abstract case for free trade – and does so more explicitly – than perhaps some people would expect or think justified in a staff study for a Royal Commission … Understandably, the Commissioners have been more concerned with tariff and commercial policy in light of the existing structure of the Canadian economy … than we have been with theories which in

The Royal Commission on Canada’s Economic Prospects  61 themselves involve certain assumptions and preconceptions and which are, therefore, subject to different interpretations when applied in practice. (Young 1957, title page)

In another testimony to Gordon’s authoritative chairing, the RCCEP issued both its reports without formal minority dissents or public disavowals from offended researchers. When considering the RCCEP’s legacy, it is striking that major contributors to the unfinished research agenda and emerging policy debate came from within its own ranks. Here the commission experience was transformative for many of the leading participants. Most obviously, Walter Gordon emerged from the commission no longer a behind-thescenes “policy fixer” but as one of the country’s most well–known public intellectuals. By the same token, many of the researchers, young and just beginning their careers, were motivated to pursue opportunities that combined economic analysis and policy influence (Azzi 1999, 40).

Commission Legacies and Lessons Consequently, the RCCEP’s internal differences found further expression through the 1960s as the ex-chair advanced his interventionist nationalist ideas, only to find himself challenged time and again by liberal continentalists from his former research team. For the most part, the two sides worked from different institutional venues in what was becoming – in a marked contrast to the pre-RCCEP years – a quite lively Canadian economic policy community. Gordon, confirming his allegiance to the Liberal Party, used the prestige and profile from his commission leadership to become the driving force behind the party’s renewal, both intellectual and organizational. While three former researchers joined Gordon in the Liberal political arena, the majority opted for the bureaucracy, government advisory bodies and agencies, and academia.4 As the exchange evolved across the decade, each school of thought gathered more expert recruits. By the late 1960s, a new generation of engaged policy intellectuals, often bringing innovative research to the issues framed by the RCCEP, joined the ranks of the liberal continentalists and interventionist nationalists. A helpful way to interpret these dynamics is through a social learning perspective, involving “a deliberate attempt to adjust the goals or techniques of policy in response to past experience and new information” (Hall 1993, 278). Between 1960 and 1968, the emerging Canadian

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economic policy community was engaged in just such learning: two different intellectual networks sought to clarify the “true meaning” of the RCCEP’s ambiguous policy legacy. Generating new research, each aimed to adjust the goals (continentalist or nationalist?) and instruments (liberal or interventionist?) of federal economic development policy. Further, the social learning lens applies especially well to the post-RCCEP dynamics, because across the decade the relationship between the two schools progresses from talking past one ­another to more constructive exchange. Indeed, the post-RCCEP social learning evolved in two rounds – an initially quite polarized one culminating in Walter Gordon’s controversial time as finance minister, and a second round after 1965 when the two schools of thought began to find common ground. In 1960, after taking charge of the Liberal Party organization, Gordon mounted an ambitious campaign in support of his interventionist nationalist program (Gordon 1983). He made a series of high-profile public speeches to national organizations of labour, students, manufacturers, and municipalities, reiterating his opposition to continental economic integration, defending the tariff, and raising concerns about Canada’s political independence. At the historic Kingston Liberal Study Conference on National Problems, Gordon participated in a panel discussion on Canadian independence, advocating his nationalist taxation, trade, and commercialization package (Azzi 1999, 76–7). Also featured were several former RCCEP researchers, including the assistant director of research William Hood, and the author of the controversial free trade study, John Young. Each rejected Gordon’s prescription, recommending the liberal continentalist alternative, including assistance for worker relocation from declining regions, tax incentives to firms regardless of ownership or control for research and development, and tariff reduction as a step towards continental free trade. One prominent economist, not affiliated with the RCCEP, but a fierce critic of its interventionist nationalism, Harry Johnson, linked Gordon’s Canadianization proposals to the narrow financial interests of Bay Street investors and corporate directors. Thus, the Kingston Conference brought into full public view the intellectual divide separating Walter Gordon and the economists that was the backstory to the RCCEP. It also clarified that Gordon’s economic ideas were far from accepted, even in the renewed Liberal Party. In fact, intra-party relations were considerably more complex than before the RCCEP. Gordon’s interventionist nationalism was not only rejected by the continentalist “old guard” but it failed to rally support from the

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other key Liberal change agent in the early 1960s. Tom Kent, who had published his own detailed critique of the RCCEP, viewed Gordon’s ideas as a distraction from the major social policy challenges that would define the new Liberalism (Kent 1960). Following the Kingston conference exchanges, debates returned to quieter channels as researchers on both sides went to work. One im­ portant sponsor for liberal continentalist research was the CanadianAmerican Committee of the Private Planning Association that was formed in 1957 in part to respond to the RCCEP’s interventionist nationalism (Bradford 1998). It published a series of monographs in the early 1960s focused on empirical study of the behaviour of American subsidiaries in exporting, hiring, and procuring – the key performance indicators that Gordon used to justify his nationalist interventions. Former RCCEP researchers H.E. English and A.E. Safarian published separate reports describing the essential similarity in behaviour of comparable firms in the Canadian market, regardless of ownership, and further that export markets had been opened up as a result of Canadian affiliation with larger international concerns (English 1964; Safarian 1966). From the other side, Walter Gordon published a short book, Troubled Canada: The Need for New Domestic Policies, that served as both a Liberal campaign document and a more popular statement of the RCCEP’s interventionist nationalism (Gordon 1961). Notably, Gordon revisited the RCCEP’s general discussion of a mechanism for capital formation and proposed a “National Development Corporation.” Meanwhile, in academia, two major empirical studies were completed that addressed the behaviour of subsidiary firms from the interventionist-nationalist perspective. Stephen Hymer used the distinction drawn in the RCCEP between equity and portfolio foreign investment to analyse subsidiary performance from the perspective of international corporations operating in multiple markets to maximize profits (Hymer 1966). He argued that global “market imperfections” enabled multinational corporations to under-price inputs from subsidiaries, limit opportunities for patent licensing, and reduce their overall tax payments. From a sociological perspective, John Porter’s research on the Canadian social structure offered a new explanation for the particular weaknesses of Canadian business as an entrepreneurial class in North America (Porter 1965). In the midst of these research contributions, Walter Gordon continued his remarkable political ascent. In 1963, when the Liberals returned to power, he was appointed finance minister and received the prime minister’s approval to bring forward a “most original budget” (Stursberg

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1978, 124). Gordon’s determination to limit foreign ownership and investment was based on his ideas from the RCCEP (Bradford 1998, 72). Sensing resistance from senior finance ministry officials – including former RCCEP research adversaries such as Simon Reisman – Gordon hired outside consultants to design his interventionist nationalist package. Featuring a bold mix of taxation measures and investment incentives for Canadianization of the economy, Gordon’s budget encountered unprecedented levels of opposition from business leaders, professional economists, opposition parties, and some members of his own Cabinet and caucus. The ensuing story is now part of the lore of Canadian budgetary politics – Gordon was forced to backtrack on the Canadianization measures, and his legislative plans for the development corporation and Canadian control of the banking system were set aside. His political standing greatly diminished, Gordon was unable to advance the interventionist nationalist agenda in his remaining two years at Finance. Interestingly, the collapse of Gordon’s 1963 budget and his ministerial departure in 1965 also coincided with a shift in the terms and tone of the post-RCCEP debates. New common ground between the two schools of thought appeared, spurred by both the course of events and the flow of ideas. In December 1965, the American government introduced its own form of economic nationalism – an Interest Equalization Tax and regulations affecting the behaviour of American subsidiaries – to close its growing balance of payment deficit. With the spectre of major manufacturers in Canada responding to American political priorities, concerns about the extraterritorial application of regulations – first broached tentatively in the RCCEP – suddenly acquired a wide political constituency. In policy ideas, there was also a progression in thought that drew the two sides closer together in their analysis and prescriptions. There was new agreement that Canada’s industrial structure was inefficient. The liberal continentalists described it as a “miniature replica” of the American economy, while the interventionist nationalists preferred terms such as branch plant or satellite economy (English 1964; Clarkson 1966). Regard­ less of terminology, both sides agreed that the problems were rooted in the historical interplay of tariff protection and foreign direct investment. Self-proclaimed “new nationalists” such as Melville Watkins and Abraham Rotstein rejected the tariff, largely because it perpetuated the “backwardness of Canadian entrepreneurship” and narrowed federal economic policy vision (Watkins 1966, 300; Rotstein 1966). Learning from John Porter’s critique of Canadian entrepreneurship, they deemed RCCEP recommendations that relied on Canadian business leaders to represent the

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national economic interest as both naive and impractical. At the same time, continentalists such as H.E. English and A.E. Safarian reported that while there was no difference between the performance of foreign-owned subsidiaries and their Canadian competitors, both lacked the dynamism and resilience of the integrated parent firms. As such, RCCEP framework policies that relied on the existing firms and market forces for adjustment “retarded the development of a specialized, indigenous Canadian industrial structure” (Macdonald 1966, 188). By the late 1960s, then, there was an emerging intellectual and political consensus that Canadian economic development required a new mix of domestic and foreign economic policies across the RCCEP divide. Neither Gordon’s package of tariff protection and tax concessions to Canadian business, nor the liberal continentalist alternative of general framework policies would deliver the more specialized producers and sectoral integration that both sides now saw as essential. In 1966, Rotstein captured the mood: “A practical policy which meets legitimate nationalist concern with foreign investment can well avoid either of the extremes that have been put forward. Between the views of Harry Johnson, who claims there is no problem with regard to foreign investment, and the views of George Grant, who claims it is already too late, there is a viable middle course” (Rotstein 1966, 356). In 1967, Walter Gordon found a pathway forward. As a condition of his return to Cabinet, with the prime minister and the finance minister he negotiated formation of a task force of experts to examine the problem of foreign investment. It comprised eight academic economists, chaired by Melville Watkins. The membership was a balanced mix of the post-RCCEP two schools of thought, including authors of the major empirical studies of foreign-owned firms, liberal continentalist A.E. Safarian, and interventionist nationalist Stephen Hymer. Abraham Rotstein, who first articulated the need for a middle course was also appointed. The task force could “fill the policy vacuum left by the Gordon Report,” incorporating recent learnings to map a workable consensus (Bradford 1998, 88). Completed in less than a year, and relying on the post-RCCEP research studies, the task force put together what it called a “New National Policy” (Canada 1968, 415). Arguing that foreign direct investment through multinational corporations was “an economic and political reality of the modern world” from which it was neither economically desirable nor politically feasible to escape, it recommended a package of policies and institutions to enable the federal government to “increase the benefits

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and decrease the costs of foreign investment,” thereby ensuring “a national economy that functions efficiently within the world economy” (355, 393; emphasis in original). Key recommendations ranged over the continentalist and nationalist discourses. From the liberal continentalists, tariff reduction and competition policy would be used to rationalize the industrial structure along more specialized and innovative lines. From the interventionist nationalists, new government agencies would limit extraterritorial application of foreign laws and monitor the activities of foreign-owned enterprises in Canada. Rather than buying back foreign-owned subsidiaries or even block foreign takeovers, the task force urged implementation of a well-resourced Canadian Development Corporation for domestic investment. In sum, the task force heard the liberal continentalist call to focus more on the general economic environment than on the nationality of business ownership, but in so doing it  drew on the interventionist nationalists for a creative mix of non-­ discriminatory policies to restructure industry in Canada to meet the international competition. In several respects, the Watkins task force succeeded where the RCCEP failed. It was generally applauded for bringing rigour and balance to design of a pragmatic national policy framework. It garnered broad support. Eric Kierans, a recent convert to the nationalist side, called it “a superb report” (Azzi 1999, 164). Steadfast liberal continentalist Harry Johnson found it a “useful, sensible, and important document on the whole,” describing certain proposals as “ingenious” and welcoming its focus on policies that set the environment for competition rather than ownership and protection (Johnson 1968, 615, 621). Within three years of its tabling, key recommendations were implemented, including the development corporation and the agencies for export development and monitoring foreign investment. Yet there was one interesting similarity between the RCCEP and the Watkins task force. Like Walter Gordon ten years before, Melville Watkins used his inquiry experience to enter the political fray, armed with economic ideas to renew his preferred party, the New Democrats (Godfrey and Watkins 1970). Other task force members followed, entering the public arena through different vehicles. Abraham Rotstein, with Walter Gordon, co-founded the Committee for an Independent Canada. A.E. Safarian joined the executive of the Private Planning Association’s Canadian-American Committee. As in the post-RCCEP years, task force members helped lead another round of social learning about federal economic policy. Following a further decade of spirited economic debate, it

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would fall to another royal commission on the economy in the mid-1980s to take stock and reset the terms for Canada’s long-term development, as documented in chapter 6 in this volume (see also Inwood 2005). Conclusion This chapter has argued that the RCCEP was an important policy actor in post-war Canadian economic policy. It shifted attention to long-term development challenges, framed a debate about policy strategy, supplied a roster of experts to pursue the issues, and recommended formation of new institutions and relations to strengthen federal policy capacity. In all of these ways, the RCCEP played a pivotal role in structuring the form and content of Canada’s first substantive economic policy community that emerged in the 1960s. By way of conclusion, we consider two broader implications from the RCCEP case study, one theoretical and the other historical. In matters of theory, the RCCEP’s path of influence – gradual, contested, and mediated – speaks to the value of recent historical-institutionalist accounts of public policy change. Scholars such as Kathleen Thelen and Wolfgang Streeck offer nuanced perspectives on institutional transformation that highlight evolutionary processes of “layering and conversion” rather than “crisis and change” (Streeck and Thelen 2005, chap. 1). While extraordinary “critical junctures” may generate rapid and fundamental paradigm shifts, the more common dynamic resembles the social learning process we have tracked over the post-RCCEP decade (Thelen 2004). Change occurs gradually, as embedded institutions and discourses take on new goals that coexist with established orientations. Over time as social actors continue to mobilize behind different projects, new hybrid frameworks take hold. As Thelen writes, “Contrary to strong punctuated equilibrium models that lead us to expect big changes in the context of big historic breaks, we often find significant continuities through historically ‘unsettled’ times, and ongoing contestation and renegotiation in ‘settled’ periods that nonetheless over time add up to significant change” (292). This conceptualization of gradual change and compromise offers valuable perspective on the post-RCCEP contestation and the eventual policy hybrid expressed through the Watkins task force. In historical context, it is also interesting to compare the RCCEP with Canada’s two other twentieth-century major royal commissions of inquiry on broad economic policy matters: the 1930s Royal Commission on Dominion-Provincial Relations and the 1980s Royal Commission on

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the Economic Union and Development Prospects for Canada (Bradford 1999/2000; see also chapter 6 in this volume). The RCCEP, with its competing development policy discourses, represents an ideational bridge across these two era-defining inquiries. On the one hand, the RCCEP’s longer-term concerns departed from the stabilization and redistribution agenda that defined the 1930s report. On the other hand, its launching of the continentalist-nationalist debate set the stage for the 1980s inquiry. And while both the Rowell-Sirois and Macdonald commissions contained their own internal policy divisions, these were not handled in the same way as the RCCEP. With the Rowell-Sirois Commission, its report offered two distinctive plans but argued strongly in favour of one. In the case of the Macdonald Commission, it presented one perspective and position as the only viable economic policy course. As such, both Rowell-Sirois and Macdonald offered governments of the day clear direction forward. Unlike the RCCEP they achieved direct and transformative policy influence on key commission priorities (Bradford 1998; Inwood 2005). There is sound evidence that Canadian royal commissions on the economy have influenced both the substance of public policy and the processes of its development. Our account of the RCCEP legacy underscores that the pathway forward can be uncertain and contested. Detailed study of actors and ideas inside the commission needs to be flanked by careful tracing of post-commission legacies in the wider policy community. Pursuing such multilayered commission analysis promises both rich interpretations of particular inquires and theoretical insights into broader processes of institutional change. NOTES 1 The RCCEP released its findings in two reports. A preliminary report was published in December 1956, and the final report in April 1958. The two reports were substantially the same in their arguments and recommendations. The final report explored topics in more depth, incorporating more fully the commission’s research. Our exposition of the commission’s ideas draws on the final report. 2 In 1946, Gordon chaired the Royal Commission on Administrative Classifications in the Public Service. In the 1930s he conducted research for the House of Commons Committee on Price Spreads, which later became a royal commission.

The Royal Commission on Canada’s Economic Prospects  69 3 The commissioners were A.E. Grauer, who had contributed research studies for the Bank of Canada and Rowell-Sirois Commission and in 1955 was the president of the British Columbia Electric Company; Omar Lussier, a forestry engineer based in Quebec City; Andrew Stewart, an agricultural economist and president of the University of Alberta; and Ray Gushue, president of Memorial University of Newfoundland. 4 The three researchers who also went on to serve in Liberal Cabinets were Maurice Sauvé, Maurice Lamontagne, and John Davis.

4 Politics and Promise: A FeministInstitutionalist Analysis of the Royal Commission on the Status of Women Joan Grace

Introduction Finding the right institutional design for progressive policy change has been vexing for advocates who seek the eradication of women’s ine­ qualities. Feminists have traversed Westminster customs, partisan aspirations, and bureaucratic practices under a political rationality that has stubbornly viewed women as primary caregivers, secondary wage-­ earners, or household domestics. Yet there have been moments in Canadian history when a constellation of factors come together that instigates policy learning and dramatically shifts women’s circumstances. One such event was the Royal Commission on the Status of Women (RCSW) whose effect on policy change, like that of the Macdonald Commission, the Royal Commission on New Reproductive Technologies, the Krever Inquiry, the Walkerton Inquiry and the Goudge Inquiry (see chapters 6, 7, 9, 11, and 12 in this volume) was transformative and direct. As noted in chapter 1, governments can use commissions to divert controversial issues away from legislatures or to postpone decisionmaking. But the RCSW is a fine example of how a commission of inquiry can open up the policy process to the attentive public by providing a forum that is not under the direct control of government but is a venue to generate policy analysis that is independent and objective while being highly public (Aucoin 1990, 197–8; Timpson 1999, 123). Now that we have passed the fortieth anniversary of the release of the RCSW’s 1970 final report, it is instructive to look to the RCSW as a “site of resistance” in the extent to which “citizens use these bodies to challenge dominant ideologies and contest each other’s ideas about the appropriate course of policy development” (Timpson 1999, 124).

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To undertake this analysis, we employ a theoretical framework that highlights the importance of institutions, not only as mediators of politics but as entities that reflect and perpetuate sociocultural ideas and underpin gendered social relations. To do so, we merge historical new institutionalism with feminist political science into a feminist-institutional approach (Krook and Mackay 2011) to reveal and critically assess the RCSW as a generator of policy change. This chapter employs a feminist-institutional analysis of the RCSW and investigates the politics of this commission of inquiry – why it was established and what the commission ultimately recommended – to understand the extent to which the promise of the RCSW was achieved and how it contributed to policy change. Ideas: Setting the Context Prior to the establishment of the RCSW, women’s socio-economic, cultural, and political status were often structured by a “dominant view of work and family life [that] dictated a strict division of labour between the sexes. Men were expected to earn the market wage to provide for dependants; women were largely confined to the private, domestic sphere, taking care of the ‘personal’ needs of the family” (Bakker and Scott 1997, 289). As a consequence, women were typically “attached” to welfare states as mothers, wives, and dependants – as so-called reproducers – while men were “attached” to the welfare state as independent breadwinners/fathers and household heads – that is, as economically valued producers. The RCSW contested the male breadwinner model and heralded a new social consciousness about women’s experiences and promoted justifications for advancing women’s social and economic liberation. It is best thought of as representing, in Jane Jenson’s words, a replacement paradigm in “developing a classic liberal-feminist analysis about how to generate equality” (Jenson 1994, 47). As such, the RCSW was a venue for women to represent themselves to government decision-makers, the public, and themselves. The RCSW, like some other key commissions, was “not simply conducting an inquiry or choosing policy. Commis­ sions of inquiry may be involved in generating new representations of history, of the present community and of available futures that both educate and may very well empower” (Jenson 1994, 47–8). Lester Pearson, prime minister in 1967, initially hesitated in striking a commission. A number of factors ultimately forced his hand, reflecting

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the increasing ideational impact of liberal human rights linked to feminism and the emergent second wave of the women’s movement. But there were also some pragmatic reasons. As well, there were clear policy objectives of import to the Pearson government related to the idea of economic growth. Women’s paid employment in the labour force had increased dramatically by the 1960s. It made sense, therefore, for the government to investigate how women’s employment could, and should, be beneficial to the economy, as women clearly represented a growing skilled labour pool (Timpson 2001, 29–30). And feminist ideas – radical, socialist, and liberal alike – were gaining credence across the country, bringing to the public’s attention the plight of women and critically questioning dominant social and stereotypical conceptions of women. This is because women’s lives were quite different during this era. Accessing a safe abortion by a medical professional was an illegal act under the Criminal Code, the sale and advertisement of contraception was also illegal, and women were often trapped in the home, having sole responsibility for caregiving and other unpaid work. Women had limited access to matrimonial property, and they were generally hired and segregated in low-waged, pink ghetto occupations with few career ladders or no equal employment standards. Women were paid less than men, were poorer than men, and were too often represented in the media as sexual objects. Women were not encouraged to enter into the halls of power either in public bodies or in the private sector. And depending on where women lived in Canada (e.g., rural or remote communities) or because of their immigration status, aboriginality, or ethnicity, many of these issues were much more acute. In essence, the individuals appointed commissioners had significant work to do. Not only did they have to educate themselves, because there was so little systematic and documented information about women’s experiences and their participation in the economy and decisionmaking, they also had to thoughtfully and pointedly educate the public to accept and understand this ideational climate and to ensure that a body of work and a set of recommendations would have some impact and meaning to policymakers. Reflecting the ideational context, four principles were agreed upon by the commissioners to guide their thinking and analysis: 1 Women should be free to take up employment outside the home. 2 The care of children is a responsibility of the family and society. 3 Society has a responsibility to women because of pregnancy and childbirth, therefore special treatment is necessary.

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4 In the interim, women will require special treatment to overcome adverse discriminatory practices. (RCSW 1970, xii) The task of the RCSW then was vast and profound, necessarily meaning a wide array of issues had to be investigated – not an easy or welcome task during a time when ideas about women’s liberation were considered to be an “explosive subject” (Bird 1974, 265) and even ridiculed and treated as an “expensive joke” by some journalists and politicians (Cohen 2009, 6). It is not a surprise, however, that the ideational framework of the RCSW was clearly cast in terms of liberal human rights (Freeman 1995, 15), which did not examine gendered power relations or systems of patriarchy. As Annis May Timpson has argued, a human rights framework ensured “that questions about women’s status and rights were seen as credible political issues,” and “indeed, the Committee for the Equality of Women had themselves lobbied the federal government stating in one of their briefs that for women to achieve excellence in public life and private life, the standards of the Universal Declaration of Human Rights had to be upheld” (Timpson 2001, 28). Response to the RCSW, however, would prove to be much more dramatic. Institutions There is a long and storied history of Canadian women organizing to compel social and political change. Struggles had ensued since the late nineteenth century, with women demanding the right to vote and workplace safety. In the mid-twentieth century, women were once again mobilizing, motivated by the ideals and aspirations of the civil rights movement. In the 1960s, however, women’s groups continued to confront an array of governing, bureaucratic, and judicial institutional arrangements that were not always receptive to progressive political change, nor conducive to women’s policy advocacy. Canadian federalism is a case in point. As Jill Vickers has argued, the division of powers between the federal and provincial governments has often acted as a formidable structural barrier that women’s groups came up against when advocating their policy goals (Vickers 1994, 141). As a key political and constitutional feature of the Canadian state, women’s policy issues have been divided between levels that guard and protect their jurisdictions. Yet in order to have a substantive response to advancing women’s equality, both sites of governing power must work in concert, given that policy areas of import to women are under the purview

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of the provinces and territories (health, education, labour, social assistance, childcare, training), while the federal government has jurisdiction over important fiscal and monetary levers, along with the financial clout to transfer funds to provinces and territories, sometimes with conditions attached that may benefit women. Yet the division of powers politically and institutionally can constrain the two levels from coordinating public policy development. And the Liberal government was mindful that the premier of Quebec, Jean Lesage, was opposed to a commission on the status of women since it would intrude into provincial jurisdiction (LaMarsh 1969, 301). This was a politically sensitive issue for Pearson, given the resurgence of Quebec nationalism in the mid- to late 1960s and the dramatic social changes that were under way in the province fuelled by the Quiet Revolution. Or it could merely have been part of a wider politics of blame avoidance. Provincial authorities have been known to argue that they need more financial assistance to implement social and economic policy reform, with the federal government reminding them that policy is provincial responsibility and so are unable to intervene. In this kind of scenario, federalism was (and remains today) highly problematic for women, especially when governmental authorities reduce issues over who pays and which government is responsible, rather than about the substance of the policy issue. Moreover, intergovernmental relations tended to focus on territorially defined policy problems and exclude non-governmental actors, especially those on the margins of the mainstream political system. Moreover, in the mid- to late 1960s, women were advocating for state responses during an era in which women did not have women’s policy offices in the federal or provincial governments to act as inside allies to advocate women’s policy objectives. While it is the case that the Women’s Bureau was established in the federal Department of Labour in 1954, its purview was restricted largely to workplace issues. There were no agencies within the administrative state to influence internal bureaucratic practices, or to ensure that women’s interests were articulated in gender terms, or were situated within an understanding of women’s socio-­ economic situations. As well, while women and other Canadians were able to seek equality redress through the courts via the Bill of Rights passed by the Diefenbaker government in 1960, this legislation was applicable only to federal laws, and more importantly, rested on the principle of formal equality rather than substantive equality. That is, in the pre-Charter days when women

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were organizing to establish a royal commission, under the Bill of Rights, as long as federal legislation was applied equally, the law was upheld. Women could not count on the judicial system to advance a counterpolitics or to force governments to amend laws that systematically discriminated against women. The Bliss case, decided in 1979, stands as a fine example of “Bill of Rights absurdity” when Stella Bliss was denied unemployment benefits because the Supreme Court ruled that “discrimination on the basis of pregnancy was not sex discrimination” (qtd in Dobrowolsky 2009, 215). While these may have been sufficient conditions to motivate an official state response to promote women’s equality, escalating demands from the emergent women’s movement propelled the cause onto the public agenda. A coalition of over thirty women’s groups had been gathered in 1966 by Laura Sabia to collectively demand the establishment of a commission. They formed the Committee for the Equality of Women (CEW), with Sabia as national chair, eventually threatening the Pearson government that if a commission was not struck, two million women would march on Parliament Hill (Cohen 1993, 5). Other progressive women made their appeals through the media. Doris Anderson, editor of Chatelaine, did so in the July 1966 edition of the magazine (Timpson 2001, 30). Moreover, the CEW had the support of the newly formed Fédération des femmes du Québec, which was a signal to the Liberal government that this was an issue of national political significance (30). The RCSW opened an institutional terrain for women to express an alternative perspective and a transformational politics that transcended conventional policy processes and federal-provincial-territorial jurisdictions. Although the RCSW was given the task to investigate how the federal government could advance the status of women, the commissioners heard from many women who went about their daily lives with no systematic critique about federalism and “took it on the chin” as a silent troupe who did the cleaning, took care of the kids, and were relegated to the non-paid sphere of the household. The commissioners took on the issue of federalism for them, making several recommendations for provincial and territorial legislative and institutional reform, knowing full well that all levels of government had to work in concert to effect real and lasting change for women. In fact, as Annis May Timpson reveals in her study of the RCSW, the recommendations of the report often “moved beyond jurisdictional constraints in the terms of reference” (1999, 140) calling on the federal government to, in one policy sector, “immediately take steps to enter into an agreement with the

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provinces leading the adoption of a national Day-Care Act under which federal funds would be made available” (140). At the same time, Pearson was keen to maintain stability of his minority government, so he acquiesced to pressure from the New Democratic Party (NDP) for the establishment of a commission, contributing to a shift in the governing institutional terrain. Moreover, women could ­argue that Canada had ratified the International Labour Organization (ILO) Convention in 1964 that committed the federal government to promote equal opportunity and treatment in employment, and was increasingly seen as the outlier when other countries, notably the Kennedy administration in Washington DC, had already established a Roundtable on Women (Timpson 2001, 29; Cohen 1993, 5). The RCSW was established on 16 February 1967 to “inquire into and report upon the status of women in Canada, and to recommend what steps might be taken by the Federal Government to ensure for women equal opportunities with men in all aspects of Canadian society” (RCSW 1970, vii). The Terms of Reference were formed by government, although the commissioners were able to steer the direction and the content of the research agenda. While it took time to build, a secretariat was established, headed by four research directors, each assigned a specific policy issue or theme, supported by a staff of fifty women (Bird 1997, 185–6). Monique Bégin, later elected to the House of Commons, was appointed executive secretary (see Bégin 1992, 1997). The research directors attended all of the meetings and “wrote and rewrote the drafts of the report” (Bird 1997, 186). The commission also had at its disposal documents, academic literature, and other relevant data and research published on the status of women in Canada and around the world. It became obvious quite soon, however, that more information was ­required to substantiate material being presented at hearings and in response to where research was needed. The commission, therefore, contracted forty studies, eleven of which were published, most of which are today available at Library and Archives Canada. In order to ensure wide distribution of the final report, research material and findings of the RCSW were condensed into one volume. There were also arrangements under way to administer an extensive survey of the experiences and aspirations of women (a central survey of 1,200 women and 600 men in each of the four regions of the country – the West, Ontario, Quebec, and the Maritimes). The central survey was developed by Research Director H. David Kirk, a sociologist from the University of Waterloo (Arscott 1995, 46). Mark McClung, son of Nellie McClung, was seconded to the commission from the Department

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of the Secretary of State to assume the position of assistant director of research. The survey was never implemented, partly as a result of the departure of both Mr Kirk and Mr McClung and likely because of the potential cost, projected to be $450,000 (47). Florence Bird, a noted journalist, was appointed chair, likely because she was a public advocate of women’s rights, and quite possibly because she had recently been in contact with the Prime Minister’s Office seeking to interview Pearson for an article on Commonwealth relations (Bird 1974, 4). Because the establishment of the RCSW was a “surprise move by the government,” no office space was made available for Bird to begin her work. Put into temporary space that was then occupied by the Royal Commission on Farm Machinery, in a whimsical yet telling story, Bird wrote a few years later, “For months afterward, when people came to call on me they were surprised to see Royal Commission on Farm Machinery on the door to my office” (264). She went on to recount, “One western reporter remarked to me that the name of the door had a certain validity because for many years farm women had been used as machinery when they went into the fields to work. I topped that by saying there were many days when I felt as though I had been run over by a tractor” (264). The RCSW worked for three-and-a-half years, apparently costing just under two million dollars (Jenson 1994, 60), although the Vancouver Sun reported that it cost three million (Pierson, Cohen, Bourne, and Masters 1993, 35). At either price, the RCSW was certainly a highly “efficient and inexpensive inquiry on a vast subject” (Arscott 1995, 35). The final report was submitted to government on 28 September 1970 and tabled in the House of Commons in December 1970. The RCSW made 167 recommendations after an extensive investigation of nine selected areas of determined importance to women: women and society, women in the economy, education, women and the family, taxation and child care allowances, poverty, participation in public life, immigration and citizenship, and criminal law and women offenders. In order to reach as many people as possible, the commissioners made a number of interesting decisions to encourage women of all walks of life to come forward to give evidence. The secretariat prepared a pamphlet providing guidance to potential witnesses on how to write up a brief, which also listed subjects the commission was investigating. More importantly, the commissioners decided that rather than advertising the call for briefs only in newspapers, the pamphlet would be available in public libraries and grocery stores in order to reach women as they went

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about their daily lives. Several months were allotted for women to submit briefs, and as the months passed, 468 briefs were eventually received, along with 1,000 letters of opinion. Public hearings began in April 1968 (Bird 1997, 187–8). Some of the hearings were televised and were held in cities across Canada (fourteen cities in ten provinces) at times best suited for women (Arscott 1995, 41) and sometimes held in shopping malls and gymnasiums to “reach people living in different parts of a city” (Bird 1974, 274). At hearings, 890 witnesses appeared, and those who could not do so in person were able to talk directly to commissioners through a hotline telephone service (RCSW 1970, x). Actors An influential political actor advocating for the establishment of a royal commission was Judy LaMarsh, the first woman to serve in a Liberal Cabinet, who acted as minister of national health and welfare from 1963 to 1965 and secretary of state for Canada from 1965 to 1968 (Cohen 1993, 5; Arscott 1995, 38). LaMarsh was up against considerable political obstacles. At a speech to a national women’s organization, she remembers that not only was the government of the day apprehensive in launching a commission, “There was an immediate and scathing reaction from some of the responsible press of the country. Pearson backed off as if stung with a nettle” (1969, 301). Still, LaMarsh persevered, arguing to Pearson and her Cabinet colleagues that it was the right time and politically appropriate to undertake an inquiry similar to the Commission on the Status of Women established by John F. Kennedy in 1961. She goes on to recount in her memoirs, “Nothing was so hard to accomplish during all the time I was in Cabinet as the appointment of a Royal Commission to inquire into the Status of Women. Not long after I took office, I broached the matter with the Prime Minister, pointing out to him that President Kennedy had recognized the signs of unrest among women in his own country and had set up just such a commission” (LaMarsh 1969, 301). Not only was LaMarsh an ardent and persistent advocate, she facilitated the process by providing to the prime minister with draft terms of  reference, along with a copy of the Kennedy Commission report (LaMarsh 1969, 301). The terms of reference between the two commissions ended up to be quite similar, focusing on the treatment of women under the law in areas such as employment, social insurance, and tax laws (Harrison 1980, 638).

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As expected, formal policy actors included the Privy Council Office (PCO) in the federal government, the body responsible for the administration of royal commissions, who gave advice and guidance to the commissioners. Other formal actors, of course, included the individuals who were appointed commissioners and the administrative staff in the secretariat. With regards to appointments, Judy LaMarsh was again instrumental. Pearson asked LaMarsh to put together a list of potential commissioners, one of which was Florence Bird. LaMarsh thought the appointment of Florence Bird would be “well received,” given that she was a “well-known woman in public affairs with fluent French” (1969, 302). The commissioners, five women and two men, had varied backgrounds, most of whom were university educated and representative of the middle- and upper-class socio-economic strata. They included Lola Lange, a farm union woman from Alberta; Jeanne Lapointe, a professor of French literature from Laval University; Doris Ogilvie, a lawyer and judge of the Juvenile Court in Fredericton; Jacques Henripin, head of the Department of Demography at the University of Montreal; Elsie MacGill, feminist and aeronautical engineer; and John Humphrey (who replaced Donald Gordon), a professor of law and former secretary-general of the Human Rights Commission of the United Nations. Interestingly, in the official Terms of Reference, some of the female commissioners were appointed under the names of their husbands (e.g., Mrs John Bird, Mrs Ottomar Lange, and Mrs Robert Ogilvie). However, Florence Bird was the first woman in Canadian history to chair a royal commission (LaMarsh 1969, 290), and, as Jane Arscott argues, for its time, the RCSW was a “progressive, relatively successful example of incorporation of diversity. The RCSW as the first royal commission headed by a woman and comprising a majority of women (including staff). Most of the regions and the country’s two main language groups, varied marital status, professional laypersons, urban and rural, older and not so old Commissioners provided the RCSW with a wealth of exhaustive yet bold range of interests and identities” (Arscott 1995, 40). Presenting or making formal submissions to the RCSW, civil society actors included a wide array of organizations and associations, some of which were part of provincial or national policy communities involved in advocating for women or their predominately female membership (e.g., Provincial Council of Women of Canada, the Canadian Federation of University Women, the Catholic Women’s League of Canada, Cana­ dian Woman’s Christian Temperance Union). Some organizations, while not solely or directly advocating for women, also took part in the

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proceedings, likely because they had an interest in advancing equity issues or issues of specific interest to a segment of their members, such as workplace rights (e.g., Canadian Library Association, Canadian Nurses Association, L’Association féminine d’Éducation et d’Action sociale, New Democratic Party, the Canadian Teachers’ Federation, United Electrical, Radio and Machine Workers of America). In reflecting who decided to appear before the Commission, Bird wrote, There was a significant sameness about the kind of people who came to the hearings day by day, in city after city. Most of them were women in their forties and fifties. Many of them spoke from hard experience, having come up against discrimination and prejudice at work, where they found that equal pay legislation did not give them the same pay as men even when they did work of comparative value and responsibility. Many were housewives who found themselves bored, dissatisfied and depressed, sitting in mechanized homes, no longer needed by their children, with thirty-five years of potentially active and useful life ahead of them. (1974, 274)

The constellation of actors who took part in ultimately framing the vision and content of the final report of the commission, either as a commissioner, a member of the secretariat, or representative of a group who gave testimony at hearing, had a particular impact that arguably would not have been the case if different individuals participated. First, it is significant that the “inquiry” into the status of women was undertaken relatively independent of government. It provided space to talk and interrogate why many of the policies passed by federal governments had done more damage than good, many of which were passed by the actors still in positions of power in government when the commission was struck. With respect to those interactions, Florence Bird and the other commissioners made decisions that ensured that the inquiry was not overly formal in its proceedings and therefore a welcome venue for women to give testimony. As noted, they purposely structured the commission’s work to reach out to as many women as possible, and they decided to put in place unique methods so that women could either find the time or a place to give testimony. The evidence the commissioners heard dramatically shaped their ideas and decisions on what had to be done to address the circumstances of women and the sorts of policy changes that were required (Bird 1997, 1974).

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Perhaps even more importantly, the commission was a site of radical politics for feminists and activists who were instrumental in the establishment of the RCSW. They gave testimony and encouraged the commissioners to think about issues in a different way, and to wrestle with entirely new understandings of women’s lives. They provided invaluable data and information in specific policy areas, all of which were influential in shaping the final report and the recommendations of the commission. Relations As with some other royal commissions such as the Bilingualism and Biculturalism Commission or the Macdonald Commission (see chapter 6), there is little information or knowledge about the inner workings of the RCSW or the group dynamic among commissioners and between the staff (Arscott 1995, 35). Arscott’s account is one of the few that provides some insights into the commission’s work that continues to intrigue as an area for future research. Although Judy LaMarsh remembers that there was “much internal difficulty” within the commission (1969, 302), there is no clear indication that the commission experienced divisions of any consequence except for some “personality conflicts” between the research staff in the secretariat (Arscott 1995, 47). There is evidence, however, that the commissioners were of differing opinions regarding how to appropriately respond to what they were hearing from women. Bird put is pithily when she recounted working with her colleagues after days and days of testimony: “The shared experience made us aware that the wisdom and good will demanded by our mandate made it necessary for us to work together as a team. Seven strong-minded individuals from very different backgrounds became united in purpose by the power of the land; by the immense, physical power of the country itself; and also by the force of the simple human needs of the people who appeared before us” (Bird 1997, 194). And indeed, not all commissioners agreed with the recommenda­tions. In the final report, there was one formal minority report (by John Humphrey) and three separate statements (by Jacques Henripin, Elsie Gregory MacGill, and Doris Ogilvie). In his minority report, Humphrey disassociated himself from the RCSW, since he disagreed with some of the recommendations. For example, he was concerned that some of the proposals of the commission “put women in a special category in the body politic” (RCSW 1970, 434). He opposed any legislation or initiatives

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that would set women apart from society, such as establishing quota systems. He was also felt that the commission’s final report was “unfair to married women at home, who, unless she is looking after young children, is made to appear a social parasite” (434). Henripin disagreed with the commission’s recommendation that women have access to legal abortions, among other issues, as did Olgilvie. Conversely, MacGill relayed in her separate statement that the recommendations regarding legal abortions did not go far enough (429). Regarding the commissioners’ interactions with the PCO, Bird recounts in her autobiography that she received efficient and courteous guidance from Leo LaFrance, the supervisor of commissions in the Privy Council Office (Bird 1974, 264). LaFrance was instrumental in educating the commissioners on what was expected and required of a royal commission (Arscott 1995, 46) and reassured the commissioners that the PCO would provide “advice and assistance based on its experience of other Commissions.” LaFrance also encouraged the commissioners to “take a special interest in research subjects that interested them as individuals in virtue of their education and experience” (46). An interesting incident with the PCO provides evidence that the relationship with the PCO was tense at one point. As noted, John Humphrey wrote a minority report, at the close of which he makes a statement not as a commissioner, but as “citizen and taxpayer” (RCSW 1970, 450). In paragraph 66, he states that the work of royal commissions could be rationalized and made more efficient if there were a permanent commission staff within the federal public service. Apparently, the PCO advised that the paragraph be taken out of the final version. Mr Humphrey responded that it appeared as though his views were being censored (Arscott 1995, 36). The paragraph was left in the final report. As for civil society, the RCSW empowered women and realigned ­formal relations between governments and the progressive women’s movement. The work and recommendations of the RCSW ignited and galvanized the emergent second wave feminist movement (Cohen 1993; Timpson 1999, 124) and eventually the establishment of the National Action Committee on the Status of Women (NAC) – a parliament of women – originally created to monitor the implementation of the RCSW’s recommendations (Vickers, Rankin, and Appelle 1993). During the 1970s and 1980s, NAC was at the forefront in advocating for policy reforms to better the lives of women. Feminist activists, most certainly of the liberal feminist persuasion, were viewed with legitimacy and given the ear of government, especially during an era of social liberalism and

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the “Just Society” while Pierre Trudeau was prime minister. The women’s movement in Canada, to the minds of many, went on to become one of the most successful social movements in Western liberal-democracies. Indeed, one could argue that the work and outcomes of the RCSW paved the way for the insertion of equality clauses in the Charter of Rights and Freedoms. Overall all then, the RSCW was influential in recalibrating the gender regime. As Cohen has suggested, at the time, the recommendations of the RCSW were “perceived (correctly) to threaten the power of established privileged groups in Canada” (Cohen 2009, 6). History has proven this to be the case. The separation between public and private space was exposed as contributing to women’s inability to exercise freedom to live and work with dignity, women’s caregiving roles were both questioned and scrutinized, and women’s lack of financial resources and decisionmaking independence was challenged. As the Toronto Star reported when the final report of the RCSW was tabled in the House of Commons, At 2:11 p.m. in the House of Commons Monday, the Prime Minister rose, bowed politely to the Speaker, and tabled a bomb, already primed and ticking. The bomb is called the Report of the Royal Commission on the Status of Women in Canada … And as a political blockbuster, it is more powerful than that famous report of the controversial commission on bilingualism and biculturalism. This 488-page book, in its discreet green, white and blue cover, demands radical change not just in Quebec, but in every community across Canada. It is concerned not merely with relations between French and English, but between man and woman. The history of the problem it describes and seeks to solve is not 100 years of confederation but the story of mankind. (qtd in Bird 1974, 302)

Assessing Policy Change: Evaluating the Effectiveness of the RSCW While the Toronto Star’s use of the word mankind seems inappropriate to us today, fundamental change did occur. The RCSW received tremendous media coverage, which “greatly advanced the cause of liberal feminism in Canada by underscoring the very real, difficult and unfair circumstances in which many women found themselves” (Freeman 1995, 13). Even before the RCSW had tabled its final report, the Trudeau government passed an omnibus bill to reform sections of the Criminal Code on contraception and abortion in response to concerns voiced during the commission’s hearings (Chappell 2002, 34). Part of this bill

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amended the Criminal Code to legalize the dissemination of birth-­ control information. From a policy and institutional perspective, change was also clearly evident. While the policy recommendations of the RCSW are far too wideranging to outline here, many have been either implemented or partially implemented. Notable legislative changes include equalizing minimum wage rates between men and women, amending the Unemployment Insurance Act to allow for maternity leave, amending the Canadian Labour Code to prohibit dismissal or layoff due to pregnancy, modifying the Indian Act to restore status to women who married non-Aboriginal men, and simplifying divorce laws. All trades in the Canadian Armed Forces were opened to women, as were military colleges, and student loans were extended to part-time students (many of which were women), educational institutions began offering Native studies programs, and funds were made available to women’s associations to conduct their work. Institutionally, the RCSW was responsible for pushing the federal government to construct a women’s policy machinery dedicated to advancing women’s equality within the federal and provincial bureaucracies. The RCSW recommended, for instance, that a Women’s Program Secretariat be established in the Privy Council Office and a women’s coordinator be appointed in each federal government department, and that Crown corporations and agencies act as an internal institutional mechanism to advance women’s policy issues. It was also recommended that a women’s policy agency be established in each province. Largely, these recommendations were implemented, although a coordinator for each federal department, agency, and bureau was not. Instead, a minister responsible for the status of women was appointed in 1971, initially headed by a male Cabinet minister. Eventually, Status of Women Canada was created in 1973, as was the independent, arm’s-length Canadian Advisory Council on the Status of Women (CACSW). The CACSW became an important inside advocate of women’s rights and the feminist project as well as an ally to many women’s groups. The creation of a women’s policy machinery also established a set of institutions that could transcend aspects of federal structural barriers. While most of these agencies were federal, soon many of the provinces established women’s policy agencies that often met (and still do) with their federal counterparts to discuss issues of consequence to Canadian women. Policy learning is also evident. As noted above, the commissioners sought out extensive research material in order to understand women’s

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socialized gender roles, their participation in the paid labour force, programs and practices that discriminated against women, and ideas about how women could enjoy full social, political, and legal citizenship. This wealth of information and knowledge was transmitted to the public, the media, and government authorities. The RCSW was, and in some sense still is, responsible for having policymakers and political elites take up the discourse of women’s equality, even if actual policy development and program change do not always transpire. The diffusion of a discourse advancing women’s equality as a legitimate task of government, while sometimes more symbolic than actual, has become part of the environment of public administration and public policy development. Interrogating language is an important step to ensure that public policies have the impact as envisioned by feminists and advocates of women’s equality. From a feminist-institutional perspective, discourses and practices can endure unless upset by dramatic circumstances. Theories of bureaucracy and public administration explain this longevity by suggesting that policy developers apply certain terms and categories to maintain the universal formulation and implementation of public policy that preserve the legitimacy of administrative experts in liberal constitutional democracies (Stivers 2002, 41–50). By doing so, bureaucratic objectivity is ensured so that the state acts as a neutral arbiter to guarantee that subsequent public policies apply equally to all citizens. In the rational-legal bureaucratic context of the liberal state, practices and policy language are assumed to be uncomplicated and unproblematic. The recommendations of the RCSW vividly revealed that the practices and context of public policymaking were indeed highly problematic for women. As a feminist-institutional perspective argues, entrenched policy trajectories can be realigned by critical events (Grace 2011; Thelen 1999, 387). Commissions of inquiry, like the RCSW, are such venues and can be highly successful if struck in response to an emergent political and social debate. Commissions offer an institutional policy space that is apart from the confines of the conventional policy development process, facilitating interactions between government and social actors to engage in policy discovery. As noted, the RCSW employed a human rights ideational framework that guided much of the commission’s thinking. It was severely criticized by radical and socialist feminists for not analysing and recognizing why some women are unable to take up equal opportunity initiatives, and the commission was admonished for not invoking a critical discourse to understand the consequences of capitalism, patriarchy, and unequal power

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relations between men and women (Timpson 1999, 124; Freeman 1995; Cohen 1993). This is evident when considering the RCSW’s recommendation regarding women’s poverty. The Guaranteed Annual Income, as recommended by the commission, has never been implemented or ever seriously debated in Ottawa, nor have women had access to a national childcare system, even after years of study demonstrating its social and economic benefits. Moreover, the RCSW did not consider violence against women or issues of import to lesbians and transgendered persons. More damning, many of the recommendations of the RCSW that would have addressed the plights of vulnerable women in Canada, namely Aboriginal women, remain only partially implemented or entirely ignored, even decades later (Cross 2000, 2). Moreover, since the rise of a neoliberal political rationality, which either ignores issues of gender or views women’s policy demands as “special interests,” some of the work of the RCSW has been either undone or scaled back (Brodie 1998, 2008). The CACSW was disbanded in the mid1990s by the Chrétien Liberal government, and the Status of Women Canada, the lead policy agency, while still working to advance women’s equality, has suffered budget and staff cuts since the 1980s. The Canada Assistance Plan, the hallmark of Canada’s welfare state, was discontinued in favour of a block fund, which has done little to ensure provincial policy development for women. As well, under the mantra of open federalism, as currently prioritized by the federal Conservative government, there has been no sustained effort to coordinate a national response in policy areas of significance to women. Still, the Status of Women Canada continues to work towards advancing women’s equality, and many provinces and territories too have women’s policy agencies that invoke a gender perspective into policy development. The federal government continues to apply gender-based policy analysis, originally promoted within the Status of Women Canada, and now taken up by departments throughout the federal public service, including the Departments of Justice and Health, and the Canadian International Development Agency. Conclusion The RCSW interjected new ideas and instigated dramatic transformation by disrupting established politics and ways of thinking about how the state could and should respond to the realities of Canadian women. The RCSW’s proceedings and final report acted as “powerful instruments of learning” (Marier 2009, 1219). The RCSW’s work transcended

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established institutional and policy development processes, providing an opportunity for many women to take an active, empowering role in educating the commissioners and government policymakers, and in reframing public discourse about socialized gender roles. Women from across the country publicly told their stories of strife, poverty, sexism, and isolation. It truly was a site of resistance – a forum that allowed the telling of experiences and personal toil that would not have taken place through conventional political advocacy or policy development institutions or processes. The women who gave briefs and shared their stories with the commissioners helped shape policy discourses for years to come. The RCSW should be “remembered and celebrated for the important and precedent-setting work it did between 1967 and 1970. Many women found their voices through connections with the Commission, and many more found their lives enriched because of its work” (Cross 2000, 3). While the commission did not tackle many policy issues that remain central to advancing women’s equality, policy change was transformative and direct. Not only were some of the more sexist and discriminatory federal laws changed or repealed, the impact of the RCSW has had lasting effect in the creation of new institutions of policy development and in interjecting into the public discourse and policy processes a language of women’s equality. The RCSW remains a monument to what was accomplished and what remains to be achieved

5 The Lasting Impact of the Berger Inquiry into the Construction of a Pipeline in the Mackenzie Valley Frances Abele

Introduction Indigenous people have achieved a peaceful revolution in northern Canada, changing the political map of the country and permanently adjusting the political balance of power in the North. In a generation, northern Indigenous people moved from marginalization to the centre of political life.1 The 1974–7 Inquiry into the Construction of a Pipeline in the Mackenzie Valley led by Thomas Berger marked an important moment in this broad political transformation, which was both institutional and attitudinal. The Berger Inquiry drew very wide and deep participation in northern Canada, probably the first (but by no means the last) time that most residents of the north were part of a common public policy debate. While it was in session, the inquiry also held the attention of the southern Canadian public. It attracted the participation of southern Canadian political groups, including economic nationalists, environmentalists, church groups, and social justice coalitions, in addition to a number of unaffiliated Canadian citizens. It was a powerful focus of citizen engagement for an academic and political generation. In the North, many of the Indigenous and non-Indigenous activists who were drawn into the process in the 1970s remain active, often in positions of power and influence. The inquiry’s report, Northern Frontier, Northern Homeland, established an enduring paradigm for public understanding of the meaning of northern development, captured in the title of the report. Before the inquiry, northern development policy was understood, rather straightforwardly, to mean the orderly extension of the natural resource frontier;

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afterwards it was necessary to take into account that what was seen as a frontier from the southern perspective was also the homeland of Indigenous people who did not at all share this vision. Over thirty years since the inquiry’s report was released, the binary paradigm captured in its title still resonates, almost taken for granted in official approaches and academic thinking about the North. Many of the institutional innovations of the Berger Inquiry were adopted in other processes of public consultation, particularly the envi­ ronmental assessment processes that were introduced in the inquiry’s aftermath. Innovations included the practices of taking the hearings to northern communities, funding interveners, providing interpretation so that individuals could testify in their own language, making information tabled by the proponent openly available, and encouraging press coverage. The inquiry’s expansive interpretation of its mandate, to encompass understanding of the connections among social, economic, cultural, and political development, also had an impact. And though the mandates of future regulatory processes were to be more constrained, many incorporated at least some of the innovative practices of the Berger Inquiry (Page 1986; Stanton 2010). The inquiry made two major recommendations: for environmental reasons, there should never be a pipeline on the northern coast of Yukon, and there should be no pipeline constructed in the Mackenzie Valley for ten years, to allow time for Indigenous land rights to be settled and appropriate benefits programs to be put in place.2 In the event, no pipeline has been built on the northern coast of Yukon. Just three years after Berger reported, however, the federal Cabinet approved construction of an oil pipeline from Norman Wells to Zama, in northern Alberta, passing through some of the same Dene territory that the gas line would have done.3 Although there is a widespread view to the contrary, especially in the North, it is unlikely that the inquiry’s reasoning or recommendations halted the Mackenzie Gas pipeline, though perhaps the process itself did so. By the end of the 1970s, the world energy picture had changed sufficiently that immediate construction of a large-­diameter gas pipeline to bring offshore arctic gas to southern markets was no longer attractive. The inquiry itself, perhaps, delayed a decision long enough for the economic case for construction to dissipate. It is virtually impossible to assess the relative weight of the various sources of social and political change underway in the North during the 1970s. No doubt the inquiry was an important part of a broader political process, which included the rise of a new generation of well-educated

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and bilingual Indigenous people who could represent community ­interests and their objections to external pressures on their way of life. While northern Indigenous people would certainly have organized and mobilized in the absence of the Berger Inquiry, it provided an institutional focus and, for a time, the funding required for internal communication and research. The inquiry did not invent but strengthened and elaborated processes for community-based, public deliberation that were reflected in subsequent formal environmental assessment processes but also in the politics of the Northwest Territories. It is this broader impact for which the Berger Inquiry is rightly renowned and regarded as a milestone in northern political and economic development. Of the ten cases examined in this volume, only the COI is characterized as having a transformative but diffuse effect on policy change. In the pages that follow, I attempt to justify the claims I have just made for the  inquiry’s impact by means of a structured narrative that treats the context, ideas, institutions, actors, and relationships implicated in the story. Context: Gathering Forces of Change in Northern Canada The Indigenous peoples of the Mackenzie River Valley and Delta are the Inuvialuit, Dene, and Metis. Each has a distinctive history and a somewhat different experience of contact with outsiders. Inuvialuit are an Inuit people who live on the coastal mainland and neighbouring islands where the Mackenzie River flows into the Arctic Ocean. Very early they found means to continue their subsistence harvest while they became successful traders, whalers, and trappers. Despite the ravages of influenza and other diseases, they managed to live in collaboration with and, when they chose, apart from the whalers and traders who entered their lands and waters starting in the eighteenth century. In common with Inuit across the North, they were never subject to the Indian Act and until modern times did not seek treaties with newcomers (Usher 1970).4 The Dene homelands lie in the northwestern half (approximately) of  the Northwest Territories, as well as portions of northern British Columbia, Alberta, Saskatchewan, and Manitoba. While all identifying as Dene, they speak five different languages and have strong regional affiliations (Dene Nation 1984). They began to seek treaties with in-­ comers soon after it became clear that increasing numbers of visitors were likely to strain local resources to an unsustainable level. The Dene saw treaties as a means of protecting their access to the lands and

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resources upon which their livelihood depended.5 Preoccupied with east-west nation-building, the federal government was for many years disinterested in negotiating treaties for northern, non-agricultural lands. When treaties were finally negotiated in the northlands, they were prompted by external interest in mineral resource development. The Dene signatories hoped by means of the treaties to regulate the impact of migration and development; the Crown representatives sought to clear the way for the same. Crown objectives were met, in the short term. Contrary to the case in southern Canada, in most of the NWT, Metis and Dene lived closely together and they were not always distinguished at treaty-making. The close connections among Dene and Metis in the northern Mackenzie Valley is reflected in the fact that Metis are parties to two of the comprehensive claims agreements (Gwitch’in and Sahtu). There are also Metis living in the Northwest Territories who are descendants of Red River Metis and who so identify.6 For the Dene, Treaties 8 (1898) and 11 (1921) meant more contact with external authorities (including annual treaty parties at which the treaties were symbolically affirmed), and enforcement of game laws, often in a fashion that disrupted traditional harvesting practices of both Dene and Metis. The game preserves they requested were indeed created, but these were separate and relatively small parcels; they did not provide all hunters with adequate or equitable access. The Second World War brought many more disruptions. The threat of a war in the north Pacific led the United States to build the Alaska Highway and the Canol pipeline, the latter to bring strategic oil reserves from Norman Wells on the Mackenzie River west through depots in the Yukon to Alaska. These major construction projects brought large numbers of s­ ervice personnel north, and each was built through Dene and other Indigenous peoples’ territory (Coates and Morrison 1992). After the war, the expansion of the welfare state and of the federal presence in the North meant that there were still more sustained interventions in Dene and Metis societies, including the introduction of compulsory schooling, more health care, social housing, and measures to encourage Indigenous peoples across the North to settle in communities.7 These long-term pressures and outstanding treaty issues, and the growing Indigenous peoples’ movement in southern Canada in the 1950s and 1960s, created the necessary conditions for mobilization in the communities of the Mackenzie Valley. Pressures of another sort had been mounting in Ottawa.8 In Canada, as in many countries, the end of the Second World War marked a new

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and more active phase in the role for the state in social provision and in  economic development. At the same time, the war had increased ­integration of the American and Canadian economies, and, after the war, sustained United States demand for energy and natural resources meant the rapid development of the Canadian mid-north. There were also military connections between Canada and the United States, born out of the common war effort and then the Cold War fears of the Soviet Union. These kept U.S. forces in the Canadian North well after the peace in 1945. For federal northern policy, there were a number of consequences. First, U.S. military personnel in the Canadian North were “welcomed” with a certain unease. With sovereignty considerations in mind, it was deemed wise to develop a stronger Canadian state presence in northern Canada. Second, a stronger state presence meant increased southern visibility of the conditions of northern Indigenous people, which in some cases were very difficult.9 Where, before the war, provision of health care and other services to northern Indigenous peoples was hardly countenanced, after the war, with expanding welfare state provisions in the country as a whole, active interventions were made. A third consequence of the new post-war condition was perhaps best expressed in Prime Minister John Diefen­baker’s slogan, “Roads to Resources.” The vast northland would at last be opened to development, with the state providing infrastructure and incentives to private development of nor­ thern resources.10 The apogee of this approach to northern development was reached in the mid-1960s, by which time most Indigenous people across the territorial North had been induced to settle in new social housing in communities where the children were attending school, and the federal northern affairs department was playing a dominant role in northern development planning. Economic development policy turned upon state promotion and subsidy of private development of resource development, while northern social policy was interventionist to the point of social engineering. An array of programs and measures were designed to ­prepare northern Indigenous people for life in towns and the wage employment that would be provided by corporations engaged in resource development. By 1968, the proposal to build a pipeline in the Mackenzie Valley had strong support in official Ottawa.11 The Mackenzie Valley pipeline proposal was enmeshed in a number of considerations of foreign policy and Canada-U.S. relations. Oil discoveries off the north coast of Alaska

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raised the issue of transportation, and Canadian officials were anxious to promote a pipeline through Canadian territory to bring the oil to southern markets. In close collaboration with industry, officials encouraged the formation of a coalition of large corporations to put forward the Cana­dian proposal and prepared guidelines for this project premised on ultimate National Energy Board approval. Also in 1968, anxieties about Canadian Arctic sovereignty were raised by the transit of a U.S. icebreaker, the Manhattan, through the Northwest Passage without prior Canadian permission. This challenge was managed, but it underlined the importance of an assertive federal presence in the North – not to prohibit the American presence but to enforce a level of cooperation and to deter unilateral U.S. actions.12 The Mackenzie Valley pipeline, oil or gas, was a response to this imperative. It was seen also as a major economic opportunity and a logical aspect of northern infrastructure development. The Mackenzie Valley pipeline would be the centrepiece of a new transportation corridor that would open the far north to the industrial economy. Besides benefitting the national economy, the Mackenzie Valley pipeline was expected to generate employment and business opportunities in the North and to form the keystone for future development. The project was announced in this optimistic spirit, and construction was begun on the road system to support pipeline construction. However, the pipeline project proved to be a step too far. Dene, Metis, and Inuvialuit had begun to organize politically in the 1950s and 1960s in response to the increased level of post-war state intervention. Some of their concerns were long-standing (inappropriate game law enforcement), while others were a response to the social engineering measures implemented after the Second World War. An overarching concern was the failure of the federal government to respect what the Indigenous people understood to be the most important terms of the treaties.13 When they learned of the proposal to build a pipeline the length of the Mackenzie Valley on Dene, Metis, and Inuvialuit land, they decided to resist. In 1971, sixteen Dene chiefs applied to file a caveat on the lands through which the pipeline was to be built, arguing that the written version of the treaty that the Crown claimed opened their lands to development did not reflect the understanding of the signatories. ­ Presented with testimony from individuals who had been present at the signing of Treaty 11 in the early 1920s, Justice Morrow of the Supreme Court of the Northwest Territories found that “there was sufficient doubt on the facts that aboriginal title was existing” to justify the caveat

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(Paulette et al. and Registrar of Land Titles (1973), 39 D.L.R. (3d) 45).14 The federal appeal of this decision to the Supreme Court of Canada was successful, but by then, the Morrow decision had halted development momentum and added to the pressure to recognize Indigenous land rights that was already mounting as a result of other court actions. As all this was occurring in the early 1970s, the circumstances faced by the federal Cabinet were unusual and favourable to innovation. First, relations with Indigenous peoples across Canada were in crisis.15 The 1969 White Paper on Indian Policy, intended to bring the liberal and reforming values of the new Trudeau government to Indian affairs, had the perverse effect of galvanizing a Canada-wide Aboriginal movement against the White Paper’s main proposals. By 1973, the ideas that animated the White Paper had been abrogated, with the federal government backing away from plans to consign the historic treaties to the dustbin of history, and announcing willingness to negotiate any outstanding “native claims.” This was a moment in modern Canadian history at which all matters of Crown-Indigenous relations were highly visible, sensitive, and fluid. The federal claim on Indigenous territories where no treaties had been negotiated was in doubt, while many treaties were in question due to federal non-compliance and some other irregularities (see Fumoleau 1973, and below). The second important consideration arose out of electoral politics. After the triumphant Liberal victory of 1968, the 1972 general election returned a minority Liberal government, sustained in power by the support of the New Democratic Party – a party that then had very strong doubts about the growing integration of the Canadian resource economy with the U.S. industrial machine, and as well as a commitment to Aboriginal rights. A third complicating factor was the sudden global shudder created by the 1973 OPEC oil embargo. In the growing global energy crisis, Canadian leaders and many citizens saw an imperative for Canada to reconsider its energy strategy, and particularly to attend to matters of domestic energy security. Through the mid-1970s, federal government concerns shifted between anxiety over preserving Canadian producers’ access to U.S. markets and interest in securing an adequate domestic supply (Doern and Toner 1985).16 Fourth, the American response to the energy crisis, and in particular, growing interest in northern energy resources and transportation options, coupled with Canadian sovereignty concerns arising from the voyage of the Manhattan, raised nationalist concerns in Ottawa and in the Canadian public. Citizens’ groups were formed to advocate for a distinct Canadian interest in the energy and other industrial sectors (Page 1986).

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Finally, the new environmentalist movement was drawing attention to the dangers of pollution from the production and transportation of Arctic energy resources, expressed in the formation of the Canadian Arctic Resources Committee (CARC) in May 1972, a coalition of experts from a number of disciplines. CARC’s purpose was to encourage debate and analysis about northern energy development, and in doing so, it joined other, more venerable environmental organizations such as the Canadian Nature Federation.17 On Dosman’s account, the major preoccupations in official Ottawa were with managing American challenges to Canadian sovereignty while promoting American markets for Canadian energy, and the resulting tension when Canadian security of supply became an issue. In these circumstances, the Dene, Metis, and Inuvialuit opposition to the Mackenzie Valley pipeline resonated – as much as they surprised officials who did not expect a serious domestic obstacle to their plans. Rather than pressing ahead with the project or postponing it, Cabinet decided to hold a public inquiry: to inquire into and report upon the terms and conditions that should be imposed in respect of any right-of-way that might be granted across Crown lands for the purposes of the proposed Mackenzie Valley pipeline having regard to (a) the social, environmental and economic impact regionally, of the construction, operation and subsequent abandonment of the proposed pipeline in the Yukon and the Northwest Territories, and (b) any proposals to meet the specific environmental and social concerns set out in the Expanded Guidelines for Northern Pipelines as tabled in the House of Commons on June 28, 1972 by the Minister.18

It seems likely that the government’s minority position, and the pivotal position of the NDP, influenced this decision, and perhaps influenced also the selection of Thomas Berger, a well-known Indigenous rights lawyer and British Columbia justice, to lead the inquiry. Minister of Indian Affairs Jean Chrétien stated that Mr Berger was his personal choice and one that was supported by Prime Minister Trudeau (who had been impressed by Berger’s arguments in the Calder case) and by Energy Minister Donald MacDonald. While the influence of the NDP cannot be discounted, it is clear that even in 1972 when Mr Berger was appointed, there were sufficient contextual uncertainties to suggest that a credible public inquiry would be in the country’s long-term interest  – as well as in the pragmatic short-term interest of the minority government. At

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this stage, of course, none of the decision-makers could have anticipated the long-term impact of the inquiry.19 Ideas: The Inquiry as a Prism One of the most important effects of the Mackenzie Valley Pipeline Inquiry as a social process was that it brought into public view the wide divide between the ideas about northern development held by the North’s permanent, Indigenous residents, and the ideas then current in Ottawa (and probably much of southern Canada). This confrontation of views is well captured in the title of the final report, Northern Frontier, Northern Homeland. Indigenous people who spoke to the inquiry were virtually unanimous in their opposition to the pipeline being constructed through their territory in advance of any arrangements that would secure sufficient control over the project to protect their lands, and would ensure that they would realize some benefits. Community members who testified before the inquiry often recounted their experiences with prior government initiatives, and their objections to the introduction of these initiatives without consultation or consent. Young and old, women and men, from all regions, they asserted their rights to govern themselves and to protect the resources upon which they depended, in the land that had been their homeland, and their responsibility, since a time out of mind.20 The starkest contrast to this view is found in federal policy of the day, reiterated in ministerial speeches and other pronouncements, and in the perspective shared by industry representatives. This view assumed that publicly promoted and subsidized development of non-renewable resources would not only benefit the national economy, but also create in the North a wage-based economy that would provide jobs and business opportunities for residents while it generated tax revenues to support public infrastructure. The North was seen as Canada’s last developmental frontier, available to be incorporated in the national economy, as the West had been following the National Policy of 1879. As had been the case then, it was assumed that the Indigenous land-based economy was due to be replaced by industrial means of generating wealth; Indigenous people themselves were to be pushed aside or incorporated (see Abele 2009; Rea 1968; and Piper 2009). While the federal view was well understood by northerners, it is probably safe to assume that the depth and extent of most northern Indigenous residents’ opposition to the pipeline, and their reasons for

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their opposition, were not fully appreciated in the corridors of power in Ottawa before they were broadcast through the inquiry process. That this should be the effect of the inquiry was a conscious objective of Berger and his staff. They had a commitment to the ideal of full citizen participation, the practical execution of which is discussed in more detail in the next section. Besides the northern frontier / northern homeland dichotomy, a number of other important ideas surfaced in the inquiry’s hearings – too many, in fact, to be adequately discussed here. The Berger Inquiry was like a public policy prism, catching all of the beams of light emanating from the socially activist period of the early 1970s in Canada. One example is the analysis provided by the Indian Brotherhood of the Northwest Territories (later the Dene Nation). The brotherhood presented an analysis of the pipeline and its consequences that drew connections between the history of colonization as it was emerging in the community testimony and their history as a fourth-world people, confronting the same external forces as oppressed peoples around the world.21 In a somewhat compatible line of argument, economic nationalists questioned the wisdom of a development strategy for Canada premised upon energy exports to the United States, arguing that the linkages were not there for balanced development and, after 1973 especially, raising concerns about security of domestic supply. Former Liberal Cabinet minister and university professor Eric Kierans questioned the timing and financing of the project, and its benefit to Canada (Watkins 1977; Page 1986; Kierans 1973). The testimony to the inquiry, and the report itself, also record one of the first sustained public debates on the nature of industrial development in modern North American history. This is expressed in another dichotomy, as the conflict between industrialization and environmental conservation. Northern poet Jim Green (then a settlement manager) spoke for many non-Aboriginal people of the time when he stated, “The pipeline is the latest example of a long series of mistakes that have happened on this land when some people think more about money than they do about people. The pipeline is the most recent step taken to destroy what little is left of my home. It began with my ancestors taking the cream off the top of the European continent. Then they came to colonize this land for greater riches. More money faster. Then came the whole process of manifest destiny. God is on our side, the Indians are savages, never did anything for the country – and on and on – until today, and look what’s left” (Green, qtd in O’Malley 1976, 268).

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Green’s way of framing the issue was in direct contrast to that put forward by the pipeline proponents. Pierre Genest, lawyer for the pipeline company, stated, “The hard fact is that without some kind of economic development, this land – this northern land, enormous, beautiful and awe-inspiring as it is – is not now supporting the population of the Northwest Territories. The hard fact is that many northerners whose forebears lived off the land do not want to go back to the traditional means of making a livelihood. The hard fact is that at present there is insufficient economic activity in the North to give the opportunity for all those who seek wage employment to fulfil themselves in these territories” (O’Malley 1976, 1–2). Chief Frank T’Seleie of Fort Good Hope told Justice Berger, “There will be no pipeline because we, the Dene people, will force your own nation to realize that you would lose too much if you ever allowed these plans to proceed. It is your concern about your future, as well as our concern about ours, that will stop the pipeline.” Addressing Bob Blair, president of Foothills Pipeline, T’Seleie stated, You are coming to destroy a people that have a history of thirty thousand years. Why? For twenty years of gas? Are you really that insane? The original General Custer was exactly that insane. You still have a chance to learn, a chance to be remembered by history as something other than a fool bent on destroying everything he touched … You can destroy my nation, Mr Blair, or you could be a great help to give us our freedom. Which choice do you make, Mr Blair? Which choice do you make for your children and mine? …   Our Dene nation is like this great river. It has been flowing before any of us can remember. We take our strength and our wisdom and our ways from the flow and direction that has been established for us by ancestors we never knew, ancestors of a thousand years ago. Their wisdom flows through us to our children and our grandchildren to generations we will never know. We will live out our lives as we must and we will die in peace because we will know that our people and this river will flow on after us.22

While T’Seleie’s words were unusually confrontational, his themes of resistance, solidarity, and generational continuity, and his explanation of the place of humans in creation, may be found in much of the testimony by Dene community members before Berger. The inquiry report reflects upon all of these points of view, resolving them, in a way, by relating land use conflicts directly to Indigenous land rights:

The Berger Inquiry into the Construction of a Pipeline  99 We have observed the passage of the white man from the eastern seaboard of North America into the great plains and yet farther west. He has penetrated the North, but his occupation of the North is not yet complete. There are those with an abiding faith in technology, who believe that technology can overcome all environmental problems. They believe that there is no point at which the imperatives of industrial development cannot be reconciled with environmental values. But there are other who believe that industrial development must be slowed or halted if we are to preserve the environment …   A particular idea of progress is firmly embedded in our economic system and in the national consciousness, but there is also in Canada a strong identification with the values of the wilderness and of the land itself … The judgment of this inquiry must, therefore, recognize at least two sets of powerful, historically entrenched – but conflicting – attitudes and values … This opposition of views is particularly clear in the North. The northern native people, along with many other witnesses at the Inquiry, insisted that the land they have long depended upon will be injured by the construction of a pipeline and the establishment of an energy corridor. (Berger 1977, 1:29)

Although there are dozens of specific issues addressed, with recommendations attached, in the “terms and conditions” set out in the second volume of the report, it is probably fair to say that the Berger report’s main argument – and its main political impact – is contained in these few large ideas: The North is a homeland, and it is the homeland of people who have understood its stewardship, practising this for millennia. Development plans for the North, made in southern centres of political and corporate power, repeat the pattern of development that has appropriated Indigenous peoples’ land and radically transformed, or despoiled, it. In light of this framing view, the report’s main recommendations – for a ban on development in the ecologically sensitive Yukon north slope, and a ten-year moratorium on development elsewhere to provide breathing space in which to prepare for development that is seen as inevitable – seem moderate in the extreme. Institutions: A Moment for Innovation The Berger Inquiry was neither the first nor the last of federally funded inquiries and commissions dispatched to the North to resolve economic and political dilemmas.23 It was, however, the most innovative and easily the most widely known. This has something to do with the times, but a great deal to do with the way in which the Inquiry set about its business.24

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The inquiry’s report documents the measures taken to ensure that residents of the dispersed small communities in the pipeline’s path had an opportunity to understand what was in prospect and to make their views known. Intervener funding was provided to non-governmental organizations representing people who had a stake in the issue; they had the finances and the time to prepare their members for the arrival of the commission in each community. This was particularly important for the new Aboriginal organizations, none of which was more than a few years old. Two sorts of hearings were held. For community hearings, the inquiry staff and commissioner travelled to settlements throughout the development corridor, hearing from community members in informal settings, sometimes outside, with time allowed for longer interventions, aided by simultaneous interpretation. Citizens were able to testify in their own languages, with sufficient time for explanation and without the distorting effect of sometimes hostile cross-examination. In addition, technical hearings of expert witnesses and formal organizations were held in major centres. At these hearings more conventional, formal rules of participation applied. Inquiry staff took extraordinary measures to ensure that there was full and sustained media coverage of the hearings in northern and southern Canada. The Canadian Broadcasting Corporation’s Northern Service (as it was then known) committed major resources to covering the Inquiry. Managers dispatched a crew of Indigenous-language as well English and French reporters to cover the hearings. The hearings themselves were radio broadcast live, while reporters speaking in all of the relevant languages emphasized the highlights. While the hearings were in progress, CBC national television carried frequent stories from the North, with striking visual images from then relatively exotic northern locations. The National Film Board documented the inquiry, and several books were written, including some for a popular audience, by journalists.25 All of this coverage served the ideals of wide public discussion and citizen participation well, and, not coincidentally, it ensured that the inquiry and its final recommendations would not be ignored. Although it is difficult to prove this observation, it seems very likely that the sustained media coverage had an important effect on Indigenous political development – providing Dene, Metis, and Inuvialuit, as well as their northern co-residents, with the means to have a long and revealing public discussion about the economic and political future of their region.26 It seems likely too that southern

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Canadian awareness of the large national issues at stake in the North was advanced. The Mackenzie Valley Pipeline Inquiry introduced some important innovations for northern hearings, including intervener funding programs, simultaneous Indigenous languages interpretation, and the practice of taking the inquiry to affected communities. Some of these were later incorporated in the Federal Environmental Assessment Review practices, and (so far) they have survived to this day in successor programs and institutions.27 Further, the Berger Inquiry hearings represented a major breakthrough in the level of northern public participation they achieved, engaging citizens to an unprecedented degree and permanently raising public expectations about their entitlement to information, engagement, and respectful dialogue. The level of participation was related, no doubt, to the sharp political issues facing northerners in the 1970s, and to the mobilization of the Indigenous organizations. But participation was also encouraged by the measures mentioned earlier, and by the inquiry’s policy of openness to information.28 The Berger Inquiry introduced northerners to territory-wide public participation in discussion of fundamental issues, creating expectations and experiences that underlay many subsequent public policy processes – concerning the future constitution of the NWT, for example, discussed through the NWT Constitutional Alliance process in the early 1980s. The inquiry also had a more direct effect on northern political development. There is no doubt that, absent the imminent threat of the pipeline megaproject and the institutional opportunities provided by the courts and the inquiry for opposing it, Inuvialuit, Dene, and Metis would have organized. They had many long-standing concerns about unfulfilled treaty arrangements and recent state interventions in their family and productive lives. On the other hand, the Mackenzie Valley hearing process provided funding to northern Indigenous organizations at just the right moment to ensure their successful establishment – and the consolidation of their community base. In the late 1960s and early 1970s, as Indigenous peoples’ organizations were formed all over Canada, the northern organizations faced particular difficulties. In the days before the Internet, widespread use of fax machines, affordable long distance telephone connections, and full television coverage, with most communities accessible only by water or air, organizing the potential membership was uniquely expensive and time-consuming. Intervener funding from the inquiry provided each of the organizations with the means to send fieldworkers to each community on several

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visits, over a sustained period of time. It also provided a unifying issue upon which to focus organizing. Actors: Expanding the Cast of People Who Matter I have argued that the Berger Inquiry drew many people into its deliberations who would never otherwise have found a political voice. Many others who would not have paid attention to the dilemmas of northern development began to do so. From the outset there were major institutional actors as well. Beginning in the late 1960s, the federal departments of Energy, Mines and Resources and Indian Affairs and Northern Development had made significant commitments of resources to preparing the way for the Mackenzie Valley Pipeline, including the conduct of a substantial research program on a wide range of technical issues related to pipeline construction. This research was provided to the Berger Inquiry and provided the primary base for many of its technical recommendations. As the inquiry proceeded, departmental officials and their political leaders maintained a close watching brief, some surprised and some concerned by the direction that the inquiry was taking. The inquiry report lists interveners who were represented by counsel, including the proponents (Canadian Arctic Gas Pipeline Limited and Foothills Pipe Lines Ltd), environmental organizations (led by the Cana­ dian Arctic Resources Committee),29 the Indigenous organizations (Committee for Original Peoples Entitlement, Council for Yukon Indians, Indian Brotherhood of the Northwest Territories, and the Metis Association of the Northwest Territories), and a number of other interested parties (Environmental Protection Board, Northwest Territories Mental Health Association, Northwest Territories Association of Municipalities, North­ west Territories Chamber of Commerce, and three producer companies: Imperial Oil Limited, Gulf Oil Limited, and Shell Canada Limited). As important as the institutional interactions were, arguably the most far-reaching impact of the inquiry was upon the lives of the people who were drawn into its ambit. In the 1970s, northern Indigenous people acted to take their place at the centre of territorial politics, permanently. The Berger Inquiry was the occasion, and perhaps the midwife, of the birth of a new politics in the Northwest Territories. While the inquiry was in session, northern Indigenous people, as individuals and through their representative organizations, assumed the national stage. That phase passed, but the northern impact of the inquiry process was enduring. By listening respectfully to community members’ voices, by strengthening their

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representative organizations, and by endorsing their considerations in its final report, the Berger Inquiry as a social process did a great deal to support the rebalancing of northern politics to include Indigenous peoples and their concerns. The inquiry presented an opportunity to Indigenous activists, and they made the most of it. Who were the activists? Dene, Metis, and Inuvialuit leaders, usually senior male harvesters, had been representing their people’s interests with outsiders for many decades. The older leadership cohort of the 1960s and 1970s were behind the formation of the new advocacy organizations of this period, but the leaders and staff of the new organizations tended to be young.30 The Dene, Metis, and Inuvialuit activists of the 1960s and 1970s were part of the large generation born after the Second World War. They were mostly bilingual and bicultural high school graduates, rooted in their own communities but also sharing knowledge and cultural preferences with other members of the “Gen­ eration of ’68” who were making social change in the rest of Canada and around the world. In the Mackenzie Valley (as in many other parts of the North) the young Indigenous activists were joined by youthful activists from elsewhere in Canada, many moving to the North as “volunteers” for the Company of Young Canadians. Some northerners also became CYC fieldworkers. Many of the CYC generation have remained in the north, raising their families there and staffing the public service.31 A third group of individuals were drawn into the inquiry process – the professionals whose expertise was required. They ranged from the lawyers working for corporations and Indigenous organizations, to the economists and natural scientists whose expertise was hired by the corporate, environmental, and Indigenous interveners to provide the inquiry with technical and professional opinions. The names of these people, without whose work the report would not have had its scientific value, are listed in the back pages of the Berger report. Finally, some of the technical experts were university professors who later published their work, and by this means they permanently enriched northern studies scholarship in Canada (see Watkins 1977; Bregha 1979; Page 1986). Relations: Power Shift and New Alliances A number of significant new relationships were forged during the short time that the Berger Inquiry was in session. First, the inquiry had an effect within the communities of Inuvialuit, Dene, and Metis who

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organized to respond. Elders and youth discussed the impact of the pipeline project, the meaning of this event in their long history, and how they should respond. Some the results of such discussions may be read in testimony before the inquiry, where both generational differences and an overriding shared commitment to collective survival and devel­opment are evident. It is likely that participation in the Berger Inquiry assisted in the process of building the base of the new Indigenous organizations. Second, the inquiry reinforced social and sometimes familial relations among young activists from the North and the South, Indigenous and non-Indigenous. Not all of these relationships were enduring, but many were, and it is probably fair to say that northern political life was permanently changed by some of the people who were assimilated into northern society in this way. Third, and especially while it was in progress, the inquiry deeply divided northern society. In the early 1970s, the Territorial Council (now the Legislative Assembly of the NWT) was dominated by pro-pipeline members who represented significant portions of the non-Indigenous population. These citizens were dismayed by what seemed to them a sudden turn in their expectations about their place in northern society, and particularly in their relations with Indigenous peoples. Even those non-Indigenous northerners who had reservations about the pipeline experienced the social shift, very noticeable in the collection of small communities that then made up northern society. Fourth, the Canadian Arctic Resources Committee became the focus of a new northern-focused environmentalist alliance, and for a time, CARC and other organizations began to develop relationships with certain aspects of the federal bureaucracy where sympathizers could be found, even while they worked, post-Berger, to maintain a northern presence. Finally, the inquiry drew together activists from a number of Gen­ eration of ’68 social movements. Economic nationalists, environmentalists, and Indigenous rights campaigners found common cause, if not always means of cooperating. It is difficult to arrive at even relative assessments of the importance of these various relationships. It is clear that the discussion among Indigenous people about the future of their region would have taken place in the absence of any pipeline project; Indigenous people had already begun to organize before they knew of the pipeline project, and the times favoured rehabilitation of the treaty relationship and new standards of democracy and social inclusion. It is for these participants to determine the extent of the difference that the Berger Inquiry made.

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Conclusion The Berger Inquiry took place at a moment in Canadian history when it was still possible to believe that an independent national economic policy was possible. The modern environmental movement was only beginning to take its contemporary shape. Indigenous people all over the country were in the midst of the long struggle that would result in the inclusion of “Aboriginal and treaty rights” in the Constitution, a  series of modern treaty negotiations, and numerous initiatives in Indigenous self-government. From this perspective, the inquiry appears as a prism – catching the energy from all these social movements, refracting it to display their essential elements. Much seemed possible. Was the inquiry an actor as well? Certainly. For a few years, as a result of its distinctive operating procedures, it became an important aspect of northern political life, and I have tried to show that its legacy lingers. It is evident that although the Berger Inquiry was not a royal commission and did not have a large national policy mandate, it does belong in the set of commissions of inquiry identified by Jenson as occasions for resetting reigning policy paradigms (Jenson 1994). It crystallized the key insight of the time, identifying the gap between the view of the North as a frontier and the reality that it was a homeland. The analysis in this chapter has emphasized the innovative conduct of the inquiry itself, its role in the political mobilization of northern Indigenous people, and its impact on federal northern development policy. These are arguably the most dramatic aspects of the story and it is important that they be well understood. In the spirit of encouraging further research, I would like to mention four other important aspects of this history that, given the limitations of space and format, I have not discussed here. First, although this chapter makes some generalizations about the role of the Berger Inquiry in the political mobilization of northern Indigenous peoples, in fact very little is written about this or about any possible long-term effect of participation in the inquiry. It is obvious that the inquiry marked a sharp break with the colonial, exclusionary politics of the past, in which the needs of northern Indigenous people were determined by outsiders. It also drew into political action a generation of young people, more young men than young women, but women too. They became important interlocutors, and many went on to positions of leadership in territorial government and in the rest of Canada.32 The story of this remarkable generation remains to be told.

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Another story could be made known, hardly mentioned in my account, about the impact of the Inquiry on the societies of permanent residents of northern cities, towns, and villages, and on northern governance. Many northerners regretted the “Berger time” because it brought dissention and disruption where before there had been what seemed to them peaceful coexistence of Indigenous and non-Indigenous neighbours. Virtually all of the non-Indigenous northerners who were in the North were there as a result of the federal northern development policies that were the focus of Indigenous resistance; most would feel its sting. The inquiry brought many southerners into the discussion, perceived by this group as lacking understanding of northern issues and pushing their own agenda. No doubt there was a grain of truth in this perception. Though the angry sobriquet “outside agitators” was hardly warranted (the political initiative was with the Indigenous leaders), it is  certainly true that those who were brought north to work on the Indigenous side did not have the personal stake and experience of the long-term northerners, most of whom were sidelined and disempowered during the Berger years. This is a story worth telling. A third neglected area concerns the impact of the Berger Inquiry on the federal public service and decision-making about northern development policy. In this chapter I have implied that the inquiry led to some reconsideration about how northern policy decisions were made, but the mechanism for this remains to be tracked. From our current situation, nearly forty years later, many changes in northern policymaking are apparent. One important change is the “off-loading” of substantive, research-based policy discussion to environmental assessment processes and other public forums, accompanied by a diminution in federal research and policy analysis capacity. It may be that the social and organizational processes set in motion during the Berger Inquiry bear some responsibility for this change – but the research on this question remains to be done. Finally, even less is known about the impact of the inquiry on corporate culture and practices in the vast, powerful, international energy resource industry. Certainly corporations have adjusted their planning and their practices to incorporate far-sighted efforts to develop working relationships with affected communities. This has led, in Canada, to a distinctive array of corporate “good practices” that are not always followed by these same corporations in other parts of the world. As the energy industry remains an enormous force in the northern political economy, it would be well if more of its inner workings were known to scholarship.

The Berger Inquiry into the Construction of a Pipeline  107 APPENDIX 5.1 CHRONOLOGY OF NEGOTIATED AGREEMENTS BETWEEN THE CROWN AND INDIGENOUS AUTHORITIES IN THE TERRITORIES 1984 1992 1993 1993

Inuvialuit Final Agreement Gwich’in (Dene/Metis) Comprehensive Land Claim Agreement Nunavut Comprehensive Land Claim Agreement Council for Yukon Indians Umbrella Final Agreement

Pursuant to the Umbrella Agreement: 1993 Vuntut Gwich’in First Nation 1993 First Nation of Na-Cho Nyak Dun 1993 Teslin Tlingit Council 1993 Champagne and Aishihik First Nation 1994 Sahtu Dene and Metis Comprehensive Land Claim Agreement 1997 Little Salmon / Carmacks First Nation 1997 Selkirk First Nation 1998 Trondek Hawch’in 2002 Ta’an Kwach’an Council 2003 Kluane First Nation 2004 Kwanlin Dun First Nation 2005 Carcross/Tagish First Nation 2005 Tlicho Agreement

APPENDIX 5.2 DENE DECLARATION: STATEMENT OF RIGHTS We the Dene of the Northwest Territories insist on the right to be regarded by ourselves and the world as a nation. Our struggle is for the recognition of the Dene Nation by the Government and peoples of Canada and the peoples and governments of the world. As once Europe was the exclusive homeland of the European peoples, Africa the exclusive homeland of the African peoples, the New World, North and South America, was the exclusive homeland of Aboriginal peoples of the New World, the Amerindian and the Inuit. The New World like other parts of the world has suffered the experience of colonization and imperialism. Other peoples have occupied the eland – often with force – and foreign governments have imposed themselves on our people. Ancient civilizations and ways of life have been destroyed.

108  Commissions of Inquiry and Policy Change Colonialism and imperialism are now dead or dying. Recent years have witnessed the birth of new nations or rebirth of old nations out of the ashes of colonialism. As Europe is the place where you will find European countries with European governments for European peoples, now also you will find in Africa or Asia the existence of African and Asian countries with African and Asian governments for the African and Asian peoples. The African and Asian peoples – the peoples of the Third World – have fought for and won the right to self-determination, the right to recognition as distinct peoples and the recognition of themselves as nations. But in the New World the Native peoples have not fared so well. Even in countries in South America where the Native peoples are the vast majority of the population there is not one country which has an Amerindian government for the Amerindian peoples. Nowhere in the New World have the Native peoples won the right to selfdetermination and the right to recognition by the world as a distinct people and as Nations. While the Native people of Canada are a minority in their homeland, the Native people of the Northwest Territories, the Dene and the Inuit, are a majority of the population of the Northwest Territories. The Dene find themselves as part of a country. That country is Canada. But the Government of Canada is not the government of the Dene. The Government of the Northwest Territories is not the government of the Dene. These governments were not the choice of the Dene, they were imposed on the Dene. What we the Dene are struggling for is recognition of the Dene nation by the government and peoples of the world. And while there are realities we are forced to submit to, such as the existence of a country called Canada, we insist on the right to self-determination as a distinct people and the recognition of the Dene Nation. We the Dene are part of the Fourth World. And as the peoples and Nations of the world have come to recognize the existence and rights of those peoples who make up the Third World the day must come and will come when the nations of the Fourth World will come to be recognized and respected. The challenge to the Dene and the world is to find the way for the recognition of the Dene nation. Our pleas to the world are to help us in our struggle to find a place in the world community where we can exercise our right to self-determination as a distinct people and as a nation. What we seek then is independence and self-determination within the country of Canada. This is what we mean when we call for a just land settlement for the Dene Nation.

The Berger Inquiry into the Construction of a Pipeline  109 This declaration was passed at the Second Joint General Assembly of the Indian Brotherhood of the NWT and the Metis Association of the NWT, 19 July 1975, at Fort Simpson (Dene Nation. “Dene Declaration.” http://www.denenation.com/ dene_declaration.html).

NOTES 1 The dramatic story of how this was achieved is too complex to be adequately recounted here. See Dacks (1981), and for a more recent historical overview, Abele, Courchene, St-Hilaire, and Seidle (2009). Although the Berger Inquiry likely made a difference to the Indigenous people of Yukon and to a lesser extent, Indigenous people in the rest of the North, for the sake of simplicity my focus here is upon the Northwest Territories, where the inquiry was based. 2 The major recommendations, with rationale, appear in volume 1 of the inquiry report. An entire volume of specific recommendations (recommended terms and conditions, should a pipeline be built) was released several months after the May 1977 publication of volume 1. 3 Norman Wells is about midway between the headwaters of the Mackenzie River and its terminus in the Arctic Ocean; thus the Norman Wells oil pipeline is very roughly half the length of the proposed gas line. 4 Stern (2005) provides a brief summary of Inuvialuit history and a snapshot of current conditions. 5 Abel (2005), Coates and Morrison (1986), Fumoleau (1973), and Helm (2000) together provide a full discussion of dominion government and Indigenous motivations and understandings during treaty negotiations, and an account of recent Dene history. Coates and Morrison show the interconnections among Treaties 8, 9, 10, 11, and a major adhesion to Treaty 5 – all the result of dominion government concerns to open the way for northern mineral development. 6 For more detail, see Northwest Territory Métis Nation, http://www .nwtmetisnation.ca/. 7 This is a very quick summary of a broad process of social change that affected the entire Canadian North. For more explanation, see Rea (1968) and Snowshoe (1977), as well as Abele (2009) and the references therein. 8 A longer account of these changes appears in Abele (2009). For deeper analysis of the events described in this and the next paragraph, see Rea (1968), Rowley (1978), Grant (1988), Piper (2009).

110  Commissions of Inquiry and Policy Change 9 Exogenous diseases had been devastating northern societies for decades, international fur markets had been collapsing, and some groups of people had been displaced or induced to relocate by the military enterprises of the Second World War. 10 Rea (1968), Grant (1988), Abel (2005), Piper (2009). Although Diefenbaker’s election slogan is well known, the formation of modern northern development policy dates from the time of Louis St Laurent (Robertson 2000). 11 Dosman (1975) describes the internal processes and collaboration with industry that led to the Mackenzie Valley pipeline proposal and subsequent public reaction. 12 Dosman (1976). On the considerations facing the Pearson and Trudeau Cabinets during this period, see English (2009), Robertson (2000). 13 Abele (2000) discusses the global repercussions of the end of the Second World War and attendant revulsion against ethnic warfare and genocide, as well as returning veterans, on the Indigenous movements in several countries. In Canada, many Indigenous veterans became activists, and Parliament revised the Indian Act to remove some of the more oppressive and undemocratic provisions. 14 The federal appeal to the Supreme Court of Canada (SCC) was partially successful, as the SCC ruled that a caveat could not be filed, but the SCC did not rule on the matter of the treaty, or “aboriginal” rights. 15 The best discussion of the 1969–75 period is still Weaver (1975). The political protests of the national Indigenous movement had an important effect in changing federal policy, but to the prime minister, it is likely that their victories in court, particularly Calder v. British Columbia (Attorney General) [1973] S.C.R. 313, [1973] 4 W.W.R. 1 were even more influential. It is interesting, and probably not accidental, that the Native rights lawyer who argued the Calder case for the Nisga’a was Thomas Berger. See also ­Dosman (1975, 194). 16 English (2009) provides an interesting account of the impact of the oil shock on the Trudeau Cabinet. See also Dacks (1981, esp. 125–67) on the effects of the world energy crisis on Canadian policy, and Dosman (1975, 185). 17 The other organizations were the Federation of Ontario Naturalists, Pollution Probe and the Canadian Environmental Law Association. All of these organizations were represented at the Inquiry through counsel for CARC. 18 PC 1974-641. The mandate is reprinted in Berger 1977, volume 1. 19 Stanton (2010, 149–50) has an excellent discussion of the political context that led to Berger’s selection, noting also that once a decision to hold an inquiry had been taken, in the aftermath of the White Paper controversy it would have been essential to appoint a credible commissioner.

The Berger Inquiry into the Construction of a Pipeline  111 20 The best source for these claims are the transcripts of the testimony to the inquiry. Some of these are excerpted in Watkins (1977) and O’Malley (1976); others are discussed in Rushforth (1994) and see Stanton (2010, 133). 21 Some key organizational and community testimony in this vein, as well as analyses presented to Berger by academics and others who were engaged by the debates, was published in Watkins (1977). The Dene Declaration: Statement of Rights, reflecting the Indian Brotherhood’s analysis, was passed at the Second Joint General Assembly of the Indian Brotherhood of the NWT and the Metis Association of the NWT on 19 July 1975, at Fort Simpson. The inquiry was still in session. The Dene Declaration appears in Appendix 5.2 of this chapter. 22 Reprinted in Watkins (1977, 13, 16–17). This selection of passages from among thousands of pages of verbatim testimony is inevitably misleading and should not be seen as representative. The words quoted here are chosen to make a particular point. Watkins (1977) and O’Malley (1976) contain many more, longer excerpts, but even these do not do justice to the rich variety of views Berger heard. 23 To mention just two examples, the Carrothers Commission (1966) held hearings in the North as part of its consideration of the development of government in the Northwest Territories, and Drury (1979) considered similar matters. 24 See Stanton 2010 for a more detailed discussion of these issues, and a reflection on their contemporary relevance. 25 For example, O’Malley (1976), National Film Board, The Inquiry Film. 26 Andrew Cowan, head of the Northern Service, was a progressive journalist in the tradition of the early days of the CBC. He was aware that news media coverage of the hearings could advance political mobilization, comparing it to the role of the CBC in bringing prairie farmers together in the 1930s and 1940s. 27 In addition to its influence on future environmental assessment processes, the inquiry also had an international impact, influencing similar inquiries in Alaska and India. See Stanton (2010, 147n625). Stanton argues also that it is likely that the practices of the Berger Inquiry influenced the design of the Residential Schools Truth and Reconciliation Commission (151n637). 28 All information presented to the Inquiry was made public, and commission counsel were instructed to make their advice to the commissioner public as soon as it was delivered (Stanton 2010, 185–6). 29 Counsel for CARC represented the Canadian Nature Federation, the Federation of Ontario Naturalists, Pollution Probe, and the Canadian Environ-

112  Commissions of Inquiry and Policy Change mental Law Association. All of the intervenors represented by counsel are listed in Berger (1977, 1:203–4). 30 Between 1968 and 1971, Indigenous people in the Northwest Territories formed the Indian Brotherhood of the Northwest Territories (later the Dene Nation), the Metis Association of the Northwest Territories, and the Committee for Original Peoples Entitlement (COPE). There was substantial support among Indigenous activists to create the Indigenous equivalent of “One Big Union.” COPE became the organization representing Inuvialuit, but in the beginning membership was open. For many years, the Dene Nation leadership sought to include Metis and non-status Indians among its members, and a union of the Metis Association and the Dene Nation was often discussed. The main force working against such unity was the federal government, which refused to make core funding available to organizations that did not respect the status/non-status divide. 31 To my knowledge there is no published study of the extraordinary alliances of idealist northern and southern youth who came together in the 1970s and remained to change the politics of their region. Such a study should be done. On the CYC, see Hamilton (1970); Dickenson and ­Campbell (2008). 32 To name just two of many, Dene Nation leader Georges Erasmus became national chief of the Assembly of First Nations, co-chair of the Royal Commission on Aboriginal Peoples, and president of the Aboriginal Healing Foundation; Ethel Blondin-Andrew rose in the NWT public service to the rank of deputy minister and then served as a Liberal member of Parliament and Cabinet minister.

6 Of Leaps of Faith and Policy Change: The Macdonald Royal Commission Gregory J. Inwood

Introduction1 Every once in awhile, the long, slow process of incremental change in public policy gives way to a relatively sudden “transformative moment.” These epochal changes in policy direction are rare in the real world and little understood in policy literature. Institutionalist theory, whether historical, sociological, or rational choice, has long been charged with being unable to account effectively for policy change (Lecours 2005) and seems to be better at explaining why change does not take place. This study looks at one such change and the policy instrument that facilitated it and uses the theoretical framework of ideas, institutions, actors, and relations to understand these moments of “transformative change.” The policy instrument is a commission of inquiry (COI); the policy change is Canada’s decision to embark upon continental free trade. The final Trudeau administration created the Royal Commission on the Economic Union and Development Prospects for Canada in 1982, known as the Macdonald Commission, which reported to the first Mulroney administration in 1985 that Canada should take a “leap of faith” into a continental free trade partnership with the United States in defiance of over 100 years of Canadian history (Macdonald Commission 1985). The commission got off to a shaky start with the ignominious and premature announcement of its birth, courtesy of an embarrassing leak to the press. That the government was going to embark on one of those generation-defining programmatic inquiries that look into everything under the sun caught even the Trudeau Cabinet off-guard. Moreover, the appointment of former minister Donald S. Macdonald as chair was widely seen as a consolation prize for his frustrated leadership ambitions,

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nipped in the bud by Trudeau’s surprising decision to “un-retire.” And controversy swirled around the fact that Macdonald was paid the outrageous sum of $800 per day. His ungracious response was to point out that he could earn twice that in his Bay Street law practice. After holding the largest public consultation exercise and commissioning the largest body of social science research to the time, the Macdonald Commission produced its weighty three-volume report with a signature recommendation – free trade – that caught the country by surprise. The Macdonald Commission was the largest, most expensive, most far-reaching public inquiry to that point in Canadian history. “The universe is in trouble – please advise,” was the unofficial title bestowed upon it by one of its research directors, Alan Cairns. It offered an institutional forum for contending ideas and interests at a historically im­ portant moment in Canadian politics. The end of a political regime was unfolding, exhausted by the constitutional politics of the 1970s and 1980s, and a new era defined largely by the emergence of globalization was beginning. It is the argument here that a key programmatic role was played by the Macdonald Commission in Canada’s momentous change in course, facilitating as it did a transformative moment in Canadian economic development policy. In so doing, the commission legitimized an emerging set of ideas and temporarily supplanted the larger set of regular or traditional institutions of the Canadian political economy (Cabinet, Parliament, public service, first ministers, courts, parties, etc.) through which these are normally reflected, while providing a forum for state and civil actors to articulate their views and engage a broader debate about the future trajectory of Canadian economic development policy. Like the Royal Commission on the Status of Women, the Royal Commission on New Reproductive Technologies, the Krever Inquiry, the Walkerton Inquiry, and the Goudge Inquiry (see chapters 4, 7, 9, 11, and 12 respectively in this volume), the impact of the Macdonald Commission on policy change was transformative and direct. Ideas What were the dominant ideas in the policy area of national economic development prior to the Macdonald Commission? At the risk of oversimplifying, nationalist and social democratic prescriptions predominated in policymaking that surrounded the creation of the commission but were under siege by continentalist neoconservative ideas percolating throughout parts of the business class, some elements of the federal

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bureaucracy, and among mainstream economists by the time the commission undertook its work. Three broad ideational factors framed the establishment of the commission. First, there was a sense that there was an irresolvable economic crisis (the depression of the early 1980s) following from the general global crisis in capitalism after the “oil shocks” of the late 1970s. Second, there was a sense that governments had been disproportionately preoccupied with the Constitution and should turn to more “bread and butter” issues like jobs and the economy. Third, there was a malaise about the capacity of the Trudeau government to address these issues, having largely spent its energies and political capital after over ten years in office. Thus the suggestion to turn to a royal commission for ideas. The notion that every generation or so, the Canadian government should undertake a broad, sweeping examination into the state of the economic, social and political union was persuasive. In other words, new ideas were needed. Two ideas animated debate about the political economy in the main contending economic development strategies that vied for primacy in Canada at the time. First, social democratic nationalism sought to use state intervention to foster Canada’s development as an autonomous nation state, and had been based since the Second World War on leftist-­ Keynesian theoretical assumptions. State-administrative manifestations of this idea in the Ottawa mandarinate dominated during the construction of the Keynesian welfare state (see Granatstein 1982; Lewis 2003). Academically, this approach found a home in Canadian political economy (Drache and Clement 1985). This view generally promoted a positive, interventionist state, up to nationalization of key parts of the economy; an industrial strategy; regulation; an array of state-sponsored social services; a multilateral trading strategy; and a role for Canada in international multilateral institutions (such as the United Nations) to counterbalance bilateral relations with the United States. It used the discourse of Keynesianism and its political bedfellow, moderate democratic socialism. Second, the antithesis of this set of views is neoconservative continentalism, which sought greater economic integration with the United States. It was based on a free-market, non-interventionist strategy, its bureaucratic home in the Department of Finance and functional ministries whose mandates revolved largely around industrial-business interests in Canada. Academically, it was associated with mainstream liberal economics. This view promoted a commitment to free trade and

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less state intervention, privatization and deregulation, and an aversion to industrial strategy. It spoke the language of neoclassical liberal economics and its political bedfellow, neoconservative politics. “Public inquiries are episodic … The crisis that leads to an inquiry often demands a response that is public, specific about the past, comprehensive about the future, and also cost-efficient and speedy” (O’Connor 2007). The Macdonald Commission offered a temporary institutional forum for contending paradigmatic views, helping to shine a light on their intellectual rationales. It is therefore an invaluable source for examining the content and discourses of nationalism and continentalism, and for explaining the fundamental reorientation in national economic policymaking represented by continental free trade. In ideological terms, the commission captured the disharmony in the political discourse of Canadian society. The post-war Keynesian consensus, battered after a series of successive crises in the 1970s, had not been reconstructed and was in disarray in the early 1980s. But social democratic nationalist economic development strategies that shaped that consensus had not been entirely abandoned or discredited. Nonetheless, a contrary view was emerging based in mainstream economic theorizing groping for a new set of more neoconservative continentalist strategies. Thus the post-war breakdown in consensus on Canadian economic development strategies had not been replaced by a new conventional wisdom. So the commission served as site of struggle between advocates of a crumbling nationalist mode of politics and proponents of a more continentalist economic regime. The depth and breadth of the ideational contestation of the times could be seen in the commission’s terms of reference, which contained an astounding 200 questions to be addressed. Institutions It has been remarked about political institutions in Canada that “conventional channels of policy development and interest representation are not the sources of major policy ideas or drivers of change” (Bradford 1999/2000, 141). The institutional features of Canadian economic development policy support this contention in the period prior to the Macdonald Commission, which were in flux and unable to deliver a coherent long-term strategic framework or settle on concrete policy prescriptions. For example, economic development policy had been the purview of  several departments. But serendipitous internal reorganization of

The Macdonald Royal Commission  117

Industry, Trade and Commerce (ITC) in the early 1980s allowed Trade to move to Foreign Affairs, where trade officials met less resistance to the idea of free trade than they had experienced in ITC, where a traditional protectionist policy had predominated (see Doern and Tomlin 1991). This protectionist mindset reflected the client-group ITC traditionally served – Canadian manufacturers – which historically had been resistant to free trade. More generally, the government was adrift in economic development policy. The prime minister was exhausted by the constitutional wars. Finance Minister Allan MacEachen’s budget of 1981 was regarded as one of the most disastrous in Canadian history. The Cabinet was restless, with key players already eyeing leadership bids. Experimentation with Cabinet committee and expenditure management systems, departmental reorganizations, and rationalizations in the 1970s and early 1980s revealed the extent to which the institutions of the day were inadequate to the tasks of modern policymaking (see Good 2007). It was a period of institutional anomie. Hence the expressed need for an independent institutional body to give the area some deeper, arm’s-length consideration. As to the internal institutional features of the Macdonald Commission, several were significant. For example, not only were the terms of reference sweeping, the number of commissioners appointed was unpre­ cedented. Despite appointing a record thirteen, the commission was criticized for its failure to be representative (see Drache and Cameron 1985). The commission also hired a large staff, seconded mainly from government departments and agencies, as well as from academe, media, and the private sector. At about $22 million, the commission also had the largest budget of any public inquiry to date. The research capacity and channels for public participation were unprecedented. And finally, the final report was a massive three-volume document that few Canadians would have the time or inclination to read cover-to-cover, despite significant media coverage of the commission during its life. But of all the institutional features within the Macdonald Commission, perhaps the most significant was the emergence of the oligarchic policy group that provided the political and bureaucratic leadership for the commission, typically found in the commission chair and senior staff. That power to shape the final recommendations of the commission devolved into the hands of this group is a matter worth reviewing. Typically, the literature on commissions of inquiry reveals that the chair is a former politician, judge, or other state official of reputation who can command respect and legitimacy for the inquiry. Such was the case with Macdonald

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who, as noted above, had been a member of Parliament and Cabinet minister in the Pearson and Trudeau governments. Senior staff are often career public servants seconded from government for the duration of the inquiry. As Weir notes, “Patterns of recruitment to administrative posts and procedures governing advancement are both critical factors in determining whether innovative ideas will emerge within national bureaucracies” (Weir 1989, 59). In this case, the Macdonald Commission in its early days became mired in infighting as commission staff jockeyed for position. As reported by participants in this process, careers were made and ruined, key staff slammed their office doors and were never heard from again, relationships were formed, marriages ended – all in the course of running the commission. The internal flux catalysed around a disastrous interim report, following which Macdonald and the policy group took hold of the commission process and shaped it towards their desired ends. As for post-commission institutional change in the Canadian political economy, clearly a new regime was constructed to facilitate the key recommendation of free trade, which was institutionalized in agreements that set new constraints and parameters around state action. However, “the institutional infrastructure for the management of the Canada–U.S. relationship is surprisingly light – no political or policy oversight, no regular meetings between heads of government or foreign or trade ministers, no formal structure of committees looking at the relationship in a coherent and coordinated manner” (Hart 2005, 123). The Macdonald Commission made little attempt to assess the necessity of these institutional innovations, or of the incessant power of the American Congress to act in its own best interests, free trade or no free trade. However, it is also noteworthy that the commission had virtually no effect on the original policy problem it was conceived to redress – barriers to internal trade and the development of the Canadian economic union. As Macdonald himself wrote twenty years after the commission, “Let me acknowledge at once that providing a specific and immutable framework for internal trade did not emerge from the Commission’s deliberations, while a range of other public policy recommendations, which had not arisen in my recruitment [as chair of the commission], did” (Macdonald 2005, 6). Although unemployment insurance reform was a major focus of the Macdonald Commission, rather than adopt its recommendations, the government of Canada resorted to yet another com­ mission of inquiry to further investigate the issue (the Commission of Inquiry on Unemployment Insurance, the Forget Commission), as did

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the government of Newfoundland and Labrador (the Newfoundland Royal Commission on Employment and Unemployment, the House Commission). Other policy areas where there was little or no institutional reconfiguration included those aimed at the Canadian state (Senate reform, federalism, electoral democracy, central agency reform, decentralization of departments for policy planning, delegation of powers between the federal Parliament and provincial legislatures, more formalized intergovernmental machinery, etc.) and at incomes policy (specifically a guaranteed annual income). Some recommendations around reform of the Canadian social safety net were made piecemeal, largely in response to the market-oriented environment generated by the “big bang” of free trade. Free trade, as one commission researcher put it, “dealt more with the kind of economy that Canada would have, rather than what kind of foreign economic relations it would pursue … the FTA was at base a domestic policy in which Canada sought especially to deregulate its economy” (Winham 2005, 104). But overall, even though the commission asserted that “without the institutional change it proposed, its economic goals were imperfectly attainable” (Cairns 2005, 134), institutional change was limited, even as the free-market ideas of the Macdonald Commission percolated throughout many policy areas over the years.2 Actors The key state actors in the sector or field prior to the Macdonald Commission included those officials and bureaucrats of the federal government in the executive branch (prime minister and Cabinet, Privy Council Office, Prime Minister’s Office, and relevant functional min­ istries) concerned with the general macro-economic governance of Canada. Their interactions with societal actors – business and labour interest groups and a growing popular sector – revolved around debates about the manner in which Keynesian prescriptions could be applied to the Canadian political economy. Among the prominent issues were the appropriate level of government intervention, regional economic development, foreign direct investment, industrial policy, and trade policy. In addition, rampant inflation and rising unemployment bedevilled policymakers by the early 1980s to the extent that there was a generalized economic crisis. Actors struggled to contrive policy under stressful and quickly deteriorating conditions. Macdonald himself noted the prevailing approach to the political economy: “Looking back to the previous decade, the 1970s, in the two economic portfolios I had

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held as a minister, I had been responsible for highly dirigiste policies. In Energy, I had been the minister responsible for the National Oil Policy of 1973/1974, the incorporation of PetroCanada, the substantial investment by the federal government in Syncrude to maintain momentum in the oil sands, and Canadian participation in a price control regime for uranium exports. In Finance, I had become the ultimate, comprehensive dirigiste over the whole economy, as the minister responsible for the wages and prices program” (Macdonald 2005, 9). The appointment of Macdonald as chair of this inquiry certainly did not portend free trade. After all, he had a reputation as a protégé of Walter Gordon, the arch-nationalist minister in Lester Pearson’s government. As Bradford points out in chapter 3, Gordon’s own COI acted as a bridge between the Rowell-Sirois COI of the 1930s and Macdonald. And Macdonald had himself charted nationalist courses as minister during the Trudeau government’s most nationalist phase, including the failed Third Option policy of diversifying trade away from the United States. Macdonald’s conversion to free markets came about as a result of his post-government career immersed at the highest level in the culture and practices of corporate Canada. In the private sector, he became convinced that “state-controlled programs had failed to achieve the rates of growth to which we all aspire” (Macdonald 2005, 9). Corporate Canada itself, long divided into resource, finance, manu­ facturing, and other fragments, was changing its views too. Specifically, protectionist elements represented by the Canadian Manufacturers Asso­ciation (CMA) gradually came to the view long held by the Cham­bers of Commerce, that free markets were preferable to state protection. They were joined by the emerging Business Council on National Issues (BCNI), and together these groups influenced the commission on the merits of free trade with the United States. In contrast, Canadian labour took a polar opposite view, arguing for a stronger state and less reliance on market forces. Among the interesting developments of the time was the emergence of a diverse and vocal popular sector. Comparisons between the Macdonald Commission public hearings and those of previous commissions reveals both a greater number and type of groups pressing their demands. In general, the views of the popular sector were more consistent with those of labour. They too preferred a dirigiste state. Analysis of the commission’s public consultations disclosed polari­ zation, with organized labour and the popular sector adopting a state-­ centred, nationalist, social democratic position, and a significant (though not unanimous) segment of the business community adopting a

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market-oriented, continentalist, neoconservative one. It reveals that, notwithstanding a majority of public submissions supporting nationalist social democratic positions, the commission adopted the opposite ideological stance. Over 1,100 groups and citizens made written deputations to the commission, and over 750 in-person presentations were heard by the commissioners in twenty-seven cities and five Arctic communities. The commissioners also met with provincial and territorial premiers and officials, and held private consultations with a variety of private sector groups. It organized seminars on the basis of these meetings and the academic research it received, and disseminated 300,000 copies of an information booklet on its activities. Workshops were held at twelve universities across the country. And a further round of public hearings in the form of roundtable and town-hall style discussions was held. Among those non-business groups that commented to the commission on economic development strategies for Canada, close to 100 per cent either opposed free trade or suggested alternative strategies. More surprisingly, perhaps, close to 50 per cent of business organizations took the same perspective. Combined with the fact that 60 per cent of Canadians voted in the 1988 election against the only party advocating free trade, this means the Canadian government embarked upon a policy choice that lacked widespread popular support. The Macdonald Commission proved to be an important site for the articulation of contending viewpoints about the future of the Canadian political economy. It gave shape to the forces that would later contend in the great free trade debate in the 1988 election and beyond (see Ayres 1998). It gave a platform to civil society actors that later galvanized into pro- and anti-free-trade coalitions. The Macdonald Commission therefore played an important role in the reconfiguration of a postcommission constellation of actors in Canadian society. It legitimized broader civil society participation in the deliberations of policymaking. But at the same time, ironically, it de-legitimized commissions of inquiry to some extent as sites of public consultation and democratic tools by ignoring much of what civil society told the commission (see Drache and Cameron 1985). Finally, the triumph of the business class over labour and the popular sector in implanting its preference for free market approaches well beyond just free trade gave it a cachet to which it previously could only aspire. The other actors of significance in the work of the commission were the academic researchers, a combination of old-boy academic and intellectual networks that produced an impressive seventy-two volumes of

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studies. Three research streams were devised: political science, law, and economics. Overall, the advice of mainstream economics was heavily privileged concerning development strategies for Canada, partly because economists appeared to be the only ones who could claim to have concrete policy prescriptions drawn up on the basis of empirically welldemonstrated models (see Simeon 1987). Indeed so embarrassingly one-sided was the academic advice flowing to the commissioners that two “reluctant nationalist” political scientists had to be conscripted to draft some counterarguments to free trade, though not so forcefully as to knock it off course. These were incorporated into the commission’s report as a sort of “manufactured dissent.” Interestingly, virtually no nationalists or dissentient social scientists were among the 300 researchers hired. Thus, the potential wealth of ideas in this segment of the commission was compromised. Strikingly, most of the output of research was largely ignored by the commissioners, partly as a result of its sheer volume, but also of a certain anti-intellectualism among some commissioners. This was the case except in one vital area – free trade. Here, the domination of mainstream economics within the research dovetailed with the predilections of Macdonald and the policy group, tilting the findings of the commission in the direction of neoconservative continentalism. The Macdonald Commission contributed to policy and process learning on the utilization of knowledge or expertise in the field. It revealed through the internal politics of the commission how use of social science research can be skewed in favour of a predetermined position, as occurred through the domination by economists whose continentalist neoconservative policy prescriptions appeared more policy-relevant than others (particularly the political scientists), and through selective use of social science research by the commission staff. Relations The key formal and informal relations/relationships of importance in the Macdonald Commission involved the set of actors who established the commission, and the key actors who participated in it. It is interesting to note that the architects of the commission were long-time senior operatives in the Trudeau government, including clerk of the Privy Council Michael Pitfield, deputy clerk Michael Kirby, secretary to the Cabinet Committee on Priorities and Planning Robert Rabinovitch, s­ enior economic advisor to the prime minister Ian Stewart, PCO functionary Alan

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Nymark, and Liberal Party insider Gerry Godsoe. None would be considered anything other than a traditional Keynesian liberal. And when they drafted the terms of reference and mandate for the commission, they did not even include free trade with the United States as a potential topic of inquiry. No one would have expected that this group, with its long history of close collaboration, trust ties, personal relationships, and professional dirigiste history would give rise to an inquiry that would end up where Macdonald did. To say this group was close-knit is no exaggeration. Not even Trudeau’s Cabinet knew of their plans to launch the commission, a fact attested to with some bit­terness by Trudeau lieutenants Donald Johnston and Marc Lalonde (Johnston 1986, 71–3). Once the commission was up and running, relationships with the inquiry began to take shape. A mix of seconded public servants, academics, journalists, and private sector actors made for interesting dynamics. Jockeying for position resulted in the ascendance of some, the banishment of others. The academics were somewhat dismissive of the officials responsible for the public consultations. The journalists and the public servants did not always get along well. And the public servants and academics revealed their cultural differences by the “uniforms” each group displayed – formal business attire for the former, casual dress for the latter. Rivalries were a very real part of the dynamic. But perhaps the key relationship was the one carved out by Macdonald as chair. Although he had to contend with twelve other commissioners, as well as a substantial staff, he managed to take command of the inquiry in league with a small number of like-minded individuals who sup­ ported his initiatives and perspectives. Internal struggles resulted in the emergence of a small oligarchy which worked closely with Macdonald and “held the pen” for the drafting of the final report. Macdonald’s conversion to neoconservative continentalist was vital to the outcome. Once transformed, he famously pre-empted the com­mission’s findings by advocating a “leap of faith” into free trade in November 1984 well before all the evidence had been heard. Meanwhile most other commissioners remained relatively insignificant actors. The Macdonald Commission was an institution extraordinarily well endowed with resources (money and personnel), and it carried the imprimatur of a legislatively sanctioned body empowered to draft a blueprint for the long-term future for Canadian development. This meant the commission enjoyed the legal/political authority to translate ideas into recommendations that the government could then turn into action.

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But transformative change generally requires a champion or champions in leadership positions who can influence the direction of change and make ideas viable that otherwise remain marginalized. Macdonald’s leadership of the commission, supported by senior bureaucrats in the “policy group,” facilitated change, even implanting a new phrase into political lexicon in the process: the “leap of faith.” Importantly, this inquiry also resulted in post-commission realignments in the predominant relationships within the Canadian political economy. The commission legitimized a continentalist neoconservative view increasingly embraced by the business class in Canada that influenced the Mulroney government’s policy choices in economic development, social policy, and other areas, as noted above. The business class in Canada ascended in the pantheon of interests attempting to influence policy. The BCNI (now called the Canadian Council of Chief Executives) in particular forged a vital relationship with government ministers and senior bureaucrats and influenced everything from employment insurance policy to the Competition Act, to further economic integration initiatives, to the single-minded focus on debts and deficits. Organized labour, on the other hand, experienced an eclipse in its influence domestically and subsequently sought continental partners to influence the course of events in the political economy. Conclusion Was there any policy change as a result of the Macdonald Commission? Causation is a tricky concept in public policy. To say a commission of inquiry “caused” a policy to happen is in many cases a stretch. Too many intervening variables might also be cited as responsible. And in any event, commissions of inquiry have no legal basis for compelling government action. However, in assessing the role of the Macdonald Commission, the evidence seems persuasive that it directly influenced the federal government to embark on an odyssey that resulted in the FTA and NAFTA. According to David Good, an experienced deputy minister recalled a meeting between Mulroney and Simon Riesman at which the decision to proceed with free trade was reached, I remember free trade. Mulroney was against it. Big business said they hated it. Macdonald’s royal commission recommended we do it, but as they said, it was a “leap of faith.” Simon Riesman and I went to visit the

The Macdonald Royal Commission  125 Prime Minister and Simon took him through the arguments for free trade, describing all the advantages. The PM said, “Simon, you are losing me,” and got up from his boardroom and went into this office and came back with a copy of the royal commission report. He put it down on the table and said, “You see this. It is supported by Macdonald, a Liberal, and it is opposed by Turner, the Liberal Leader of the Opposition. We’re going to do it. (Cited in Good 2007, 97; see also Doern and Tomlin 1991)

In addressing the question of whether there was significant change in policy that might be attributed to the Macdonald Commission, the answer is yes, it prompted policy change that was transformative and direct. The commission served as the site of a struggle between advocates of a crumbling nationalist mode of politics and proponents of a more continentalist economic regime. Of course, the exact nature of the free trade agreements signed by the Canadian government differed from those recommended by the Macdonald Commission. As Daniel Trefler put it, “Careful what you wish for. The Macdonald Commission wanted a Free Trade Agreement with the United States and ended up with an accord that included Mexico. The Commission also wanted a set of rules for dispute-settlement and institutions for enforcing those rules that would have insulated Canada from the vagaries of U.S. trade sanctions. Instead, we got rules that both went too far (the expropriation clause) and that did not go far enough (softwood lumber)” (Trefler 2005, 111). Overall, “in areas other than trade policy, the Commission’s subsequent influence was both less direct and less immediately visible, s­ometimes because no attempts were made to implement its recommendations, and sometimes because those recommendations were somewhat sketchy” (Laidler 2005, 176–7). Even the contribution of the Macdonald Commission to reshaping the ideational landscape was not one-dimensional. Although it emphasized and argued strongly in favour of free markets and a less dirigiste approach overall, Cairns notes, “In a seeming paradox, the Commission favoured both a strengthened federal government and a market less subject to state direction” (Cairns 2005, 135). One manner of assessing the question of policy change is to ask, would free trade have occurred in the absence of the Macdonald Commission? Answering this provocative question takes us into a realm of speculation. But I would conclude – perhaps bucking conventional wisdom – that the answer is no – at least not in the form it eventually took. I would argue that the specific requisites that contributed to

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the commission’s free trade recommendation, the government’s immediate adoption of it, and the resulting transformative moment in public policy were the result of a particular confluence of ideas, institutions, actors, and relations. Specifically, consider the following: First, a significant measure of social and economic disruption in the late 1970s and early 1980s revealed the inadequacy of existing policy. This created the conditions for ideational challenges to the role of governments and major ideas supporting their policies. The prevailing hegemonic set of social democratic nationalist ideas rooted in Keynesianism were unable to defeat competing meaning systems that were emerging, because contradictions were intensifying, and the previously hegemonic ideas could no longer account for prevailing conditions or emerging crises. Consequently, social actors began adopting competing meaning systems because they made better sense of the new situation (see Jenson 1989). As Peter Hall suggests, “It generally takes a theory to kill a theory” (Hall 1989a, 15). Changes in material conditions in Canada (the ongoing crises in capitalism since the 1970s, and particularly the depression of 1981–2) raised serious doubts about the Keynesian formula. But how did a new set of ideas arise to replace it? The transformative moments emerging from ideological struggle represented in the Macdonald Commission is explainable by assessing certain other factors, or requisites (Inwood 2005; see also Bradford 1998; Hall 1989b). First, there was political viability in the recommendation for free trade. This implies that there was the support of significant actors who could help deliver electoral success to the policy’s political supporters. Second, there was economic viability, which refers to the ability to address serious economic problems better than existing policies, often with the imprimatur of the research community. Third, there was political and bureaucratic leadership, which refers to the legal and political authority of state officials and their resulting institutional capacity to sway decision-makers to accept their preferred course of action.3 The struggle to attain political viability can be seen through the public consultations – generally the hallmark of the public inquiry process – which help delineate legitimate identities and ideas. Here, discussion of political and economic issues and problems takes place. Terms like “reduce the deficit,” “free trade,” and “less government” took on popular meaning only after political struggle and after the once hegemonic Keynesianism had been challenged by the world views propounded by neoclassical economics and elsewhere (Jenson 1987; Clarkson 1978). At

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a given point, one set of definitions is privileged or favoured over others. Thus a dominant discourse is established that typically favours the interests of particular actors and allows institutions that support the status quo to articulate the dominant discourse. Those who seek to achieve significant reform or radical change are forced to challenge the dominant discourse and attempt to gain legitimacy for an alternative discourse. Success in these endeavours requires that actors “go to bat” for the proposed change. It is generally assumed that some measure of broad-based popular acceptance of a policy proposal is necessary for adoption, but this is not always the case. Not all collective identities can gain attention, because actors are not equally powerful. Who says something is sometimes more important than how many. Thus, analysis of the commission reveals that certain business groups lent political viability to the idea of free trade (the BCNI, CMA, and Chambers of Commerce). This later translated into electoral support for the Mulroney Conservatives when the business community spent unprecedented amounts of money organizing a powerful coalition in favour of free trade (co-chaired, interestingly, by Macdonald) during the 1988 election. Political viability, then, did not depend on widespread popular support for the policy. But it needed the acquiescence of important societal actors as a requisite for policy change. As Gourevitch notes, policies must mobilize coalitions of actors upon whose support, electoral and financial, elected politicians depend (Gourevitch 1984). Ideological struggle leading to transformative change requiring economic viability was reflected in the research program of the Macdonald Commission. Here competing visions were offered in guise of “learned” academic discourse. While social science knowledge utilization is presented ostensibly as disinterested, neutral, and scientific in the context of public inquiries, it is actually often biased, devoted to promoting an agenda, and profoundly ideological. This is revealed in the manner in which knowledge utilization is employed to buttress (or attack) a dominant discourse. This aspect of the transformative moment is enhanced if new ideas (like monetarism) energize intellectual movements to ­challenge the theoretical premises of existing dominant models (like Keynesianism). The role of the professional research community is significant, as is the receptivity of state administrative personnel. A new paradigm can gain considerable credence under these conditions. The commission research program privileged economists and allowed their ideas to dominate. It then became possible to argue that any critics of

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the newly dominant discourse of the economists were outside the bounds of reasoned and accepted debate. Proponents of free trade could dismiss the objections of those concerned about the possible political and cultural consequences of economic integration by arguing that economics cannot quantify or empirically measure such objections, therefore they have no validity. Or opponents of the dominant discourse could be dismissed as little more than self-interested whiners, radicals, or crackpots. Thus the ideology of the dominant discourse is persuasively imposed, but not by virtue of its strength of argument. In the broader struggle for the turf of social science dominance, neoclassical economics emerged triumphant not only in university economics departments, but also in the halls of government and journalism. These developments were clearly reflected in the mirror of the Macdonald Commission, where a battle of the paradigms between different collective identities took place to interpret and reshape the face of the Canadian political economy. Finally, political and bureaucratic leadership was supplied by ­Mac­donald and the policy group. With the legal and political authority bestowed upon them by the Inquiries Act to conduct their inquiry, they used the institutional capacity to sway decision-makers to accept their preferred course of action. Macdonald’s strong leadership then powerfully combined with Mulroney’s need for a political-economic agenda with which to defeat the Liberals. But if these requisites had not been in place, conceivably free trade would not have unfolded as it did. Certainly a global movement towards free markets was an important part of the landscape in the years after the commission had done its work. But prior to that it was nowhere to be found on the agenda of Canadian governments. Mulroney had disavowed free trade as an option when he ran for leadership of the Conservative party. The business community was divided, while labour and the popular sector were opposed. The bureaucracy was unconvinced. And although not expressly considered in the context of this study, the American Congress was in a decidedly protectionist mood and uninterested in negotiating free trade agreements in any event. The conventional wisdom about commissions of inquiry is often that they are instruments for policy avoidance rather than policy action. Yet  there are exceptions, of which the 1985 Royal Commission on the Economic Union and Canada’s Development Prospects is an example for two main reasons. First, it did have a significant impact upon public policy – its main recommendation for free trade was immediately adopted

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and implemented by the Mulroney government. Second, it was quite radical, as its signature recommendation called for reversal of over 100 years of Canadian economic development strategies. Instead of suggesting Canada proceed cautiously with gradual elimination of tariffs through multilateral agreements, or even through the quicker but still cautious road of sectoral free trade, the Macdonald Commission recommended a sharp right turn onto the highway of comprehensive free trade with the United States. Thus, occasionally broad-based programmatic royal commissions have profoundly influenced the political economy and set new parameters for the policy agenda for generations of Canadians. An exami­ nation of the requisites for transformative change and the mode of ideological struggle helps us to make sense of the radical transformation in Canada from the pro-state, interventionist, Keynesian position of most of the post-war years, to the anti-state, pro-free-market deregulationist, neoclassical liberal economics position of the Mulroney years, the climax and consolidation of which was the Free Trade Agreement (FTA) and, ultimately, the “continentalization” of Canada. A final question remains, however. Are the lessons of the Macdonald Commission applicable to analyses of other public inquiries and policy change, or was the combination of requisites and historical circumstances unique? Further research featuring comparative analyses of other inquiries will help answer this question. NOTES 1 For a fuller analysis of the Macdonald Commission, see Inwood (2005). Parts of this chapter are derived from this study. 2 This general conclusion is drawn by several contributors to a twenty-year retrospective on the impact of the Macdonald Commission. See Laidler and Robson (2005). 3 In assessing a different kind of inquiry – special-purpose advisory commissions – Clark and Trick argue that successful policy change is dependent upon three variables: “environmental variables (such as the economy, fiscal situation and political cycles), process variables (such as reporting relationships, characteristics of the commissioners and stakeholder strategies) and the political acuity with which the commission develops recommendations that can command broad public support” (Clark and Trick 2007, 181–2).

7 The Framing of Scientific Governance in Canada: Policy Change and the Royal Commission on New Reproductive Technologies Francesca Scala

Introduction The birth of the first child conceived through the technology of in vitro fertilization (IVF) in 1976 was a formative event in the field of biomedicine and reproductive technologies. As a medical breakthrough, this event not only represented a significant advancement in the treatment of infertility but it also made it possible for scientists to carry out human embryonic stem (hES) cell research. In many ways, this event and other technological and scientific advancements that followed would challenge our understanding of prevailing societal practices and institutions, such as parenthood, motherhood, reproduction, and the family. Moreover, it would alter the moral, social, and regulatory landscapes for embryo research and genetic engineering. In many countries, governments appointed advisory councils and public inquiries to address the legal and social challenges represented by reproductive technologies. In Canada, the federal government appointed the Royal Commission on New Reproductive Technologies (RCNRT) in 1989. Like other inquiries before it, it brought together experts from a variety of disciplinary and professional backgrounds in an effort to fulfil its mandate to investigate the social, legal, and ethical implications of reproductive technologies and develop recommendations for government action. Moreover, in the tradition of policy-­formulating royal commissions, the RCNRT held public consultations and hearings to allow ordinary citizens, interest groups, and social movement organizations the opportunity to participate in the official debate on reproductive technologies, develop policy, and introduce change.

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Women’s groups were especially active participants in the commission’s deliberations. Indeed, several of Canada’s leading feminist organizations and activists lobbied the federal government for a public inquiry on the issue. Critical of the dominance of medical experts and industry leaders in the area of reproductive technologies, these groups sought to expand the boundaries of the debate beyond the scientific realm. A royal commission was regarded as an effective mechanism for encouraging public debate and shedding light on the impact of these technologies on prevailing institutions and practices, such as reproduction, motherhood, parenthood, and the family. Four years later, the commission published its final report, Proceed with Care, which was favourable to embryo research but prohibited some of the more controversial areas of research, such as the creation of animal-human hybrid embryos, cloning, and sex selection. Among its recommendations was the creation of a national regulatory agency, the Assisted Human Reproduction Agency of Canada (AHRAC), which was subsequently enacted in Canada’s Bill C-3, An Act on Human Assisted Reproduction. While the commission’s terms of reference specifically addressed the issue of reproductive technologies, this chapter argues that the RCNRT was engaged in a broader policy debate that centred on scientific governance. Deliberations on infertility treatments and embryo research were embedded in a broader debate about the relationship between science, the Canadian state, and the public. While not explicitly stated, of central importance to the commission’s deliberations were questions about public engagement in science and technology policymaking, the relationship between scientific and broader societal concerns, and the resolution of political conflict and controversy in science and technology policy. Like the Royal Commission on the Status of Women, the Macdonald Commission, the Krever Inquiry, the Walkerton Inquiry, and the Goudge Inquiry (see chapters 4, 6, 10, 11, and 12 in this volume), the impact of the RCNRT on policy change was significant and both direct and indirect. The commission’s broad mandate, the appointment of commissioners critical of reproductive technologies, and the neoconservative political climate suggest that the inquiry intended to move beyond the medical-scientific framing of the issue and launch a comprehensive if not critical examination of these technologies and their impact on Canadian society. However, the commission’s potential to broaden the

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debate and challenge the authoritative ideas and privileged status of science in this policy area was not realized. This case focuses on the “formative decisions” taken by the commission in the early stages of organizing its work and examines how these decisions framed the official discourse on reproductive technologies and scientific governance. These decisions are important because they helped determine the trajectory for the commission’s research and consultations. The chapter argues that several decisions taken by the commission directly or indirectly consolidated the authority of medical-scientific experts whose dominant ideas prevailed and pushed to the margins the perspectives of expert and non-expert groups critical of reproductive technologies. Context The term new reproductive technologies refers to a category of biomedical practices and procedures used to assist conception and pregnancy. New reproductive technologies include in vitro fertilization, surrogacy, egg donation, therapeutic donor insemination, and embryo freezing and transfer. As a group, these practices provide alternative means to insemination and fertilization other than heterosexual intercourse. In the 1980s, a number of events brought to the fore some ethical and legal dilemmas posed by reproductive technologies. In 1984, the legal status of frozen embryos “orphaned” after the accidental death of their biological parents in a plane crash became a hotly contested issue (Gallagher 1987). The American couple left no instructions regarding the embryos in their will, thus leaving unanswered the question of ownership. The fertility clinic “housing” the frozen embryos in Australia argued that it should have the final say on the embryos’ fate, whether it was to destroy them, donate them to an infertile couple, or utilize them for research. Religious and anti-abortion groups argued that the frozen embryos should be given personhood status and be adopted by an infertile couple. In the 1980s, the high-profile custody case in the United States between a biological father and gestational carrier over an infant referred to in the media as “Baby M” brought home the legal and social challenges accompanying reproductive technologies. The surrogate mother’s attempt to gain guardianship of the child led to a long and bitter custody battle with the biological parents who had contracted her services (Raymond 1993). In both cases, the courts became the primary venue for settling disputes involving parental and ownership rights in

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this burgeoning field. However, these well-publicized cases and others like them also sparked a broader public debate on the ethical and social implications of these technologies and prompted a number of social movement organizations and interest groups in various countries to lobby for government action. During this time, several countries appointed government inquiries to examine reproductive technologies and provide policy recommendations. One of the earliest inquiries was Britain’s Warnock Committee, appointed by the British government in 1982 in response to the 1978 birth of the first IVF baby, Louise Brown. Australia followed suit with the appointment of the Waller Committee to Consider the Social, Ethical, and Legal Issues Arising from In Vitro Fertilization. In Canada, given that health care is a provincial responsibility, several provincial governments, including Ontario, Saskatchewan, British Columbia, and Quebec, appointed advisory councils and expert committees to examine reproductive technologies. In the 1980s, several professional associations, both provincial and federal, released working papers on different aspects of reproductive technologies, including the Law Reform Commission of Canada, the Ontario Law Reform Commission, and the Law Reform Commission of Saskatchewan. Other bodies were established – by both Health and Welfare Canada, and medical associations – including the Medical Research Council of Canada, to examine matters that were of interest to their professional constituencies. In the late 1980s, women’s organizations and feminist scholars began mobilizing nationally and internationally against reproductive technologies. In Canada, feminist activists and groups launched the Canadian Coalition for a Royal Commission on New Reproductive Technologies in 1987 in an effort to open a public debate on the ethical and social issues inspired by reproductive technologies. A key objective of the coalition was to raise public awareness concerning the impact of these technologies on women’s physical, social, and economic well-being. Inspired by the consciousness-raising work of the 1967 Bird Commission on the Status of Women, the coalition believed a royal commission could provide a forum for groups and individuals to educate themselves about the issue and to have their concerns heard by government (interview with Margrit Eichler, 10 September 1999; interview with Susan Sherwin, October 2001; interview with Rona Achilles, October 2001). In 1987, the coalition organized a rally on Parliament Hill and held a general meeting with representatives of all political parties on Parliament Hill (Eichler 1995). Many of the members of the coalition were vocal

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critics of these technologies and supported a moratorium on several practices, including embryo research, prenatal genetic testing, and the use of IVF for the treatment of infertility. Another important consideration involved in the decision to lobby for a royal commission was its quasi-judicial status. As outlined in chapter 1, COIs are often appointed by governments to uncover facts and evidence regarding government or industry misconduct. The quasi-judicial power of COIs to question witnesses was an important consideration in the coalition’s lobbying efforts. The group argued that a royal commission could compel biomedical experts and industry representatives to divulge confidential information on the success rates of reproductive treatments and their long-term side effects on women. As Eichler explains, “Since it is notoriously difficult – as it should be – to obtain medical data, this seemed the appropriate mechanism to acquire the basic empirical information that would allow the Canadian public to judge the various reproductive and genetic techniques” (Eichler 1995, 215). In October 1989, the federal government announced the appointment of the Royal Commission on New Reproductive Technologies. The commission was asked to examine a wide range of technologies, including assisted insemination, in vitro fertilization, embryo research, prenatal diagnosis techniques, and surrogacy. One of its goals was to investigate the impact of these technologies on different segments of Canadian society, women in particular. Conservative social policy at the time seemed favourable to imposing restrictions on some of these technologies, in particular embryo research. In November 1989, Brian Mulroney’s Conservative government introduced Bill C-43, an amendment to the Criminal Code that would prohibit abortion unless a doctor found the pregnancy to be a threat to the woman’s physical, mental, or psychological health. The same year, Minister of Health and Welfare Jake Epp, a self-described pro-life supporter, announced that his department would not be funding research on fetal or embryo tissue (Mullen 1996). Brian Mulroney’s own anti-abortion stance prompted his office to contact the Archdioceses of Toronto for a recommendation on a possible commissioner (interview with Suzanne Scorsone, 10 September 1999). Favourable conditions were in place to expand the ideas and parameters of the debate on reproductive technologies and bring into the policy process actors outside of the elite group of scientific and medical experts who were pushing for an expansion of the use of reproductive technologies in Canada. The ability of the RCNRT to take advantage of these conditions would be influenced by the formative decisions it

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would take regarding its research program, public hearings and consultations, and other organizational choices. These were reflected in the ideas, actors, institutions, and relations that collectively underpinned policy change. Ideas: The RCNRT and Issue Expansion In the early 1970s, the use of IVF as a treatment for infertility was regarded as highly experimental. With the birth of the first “test-tube” baby in 1978, IVF and related treatments such as pre-implantation genetic diagnosis and screening quickly became routine medical procedures in Western societies. Today, IVF is widely accepted as “a research discipline, a specialised medical field (‘reproductive medicine’) and as a common medical procedure” (Van Dyck 1995, 24). Moreover, biomedical and genetic research (e.g., stem cell research) is widely regarded as a key engine of economic growth in many countries, including Canada and the United States. Media accounts of “miracle babies” and the potential of genetic engineering to cure medical conditions has also contributed to the normalization and routinization of reproductive technologies and biomedical research, and solidified the privileged status of practitioners and researchers in official policy deliberations in this field. As is often the case with medical and science policy, experts and specialized knowledge were extremely influential in setting the parameters of the policy debate of assisted reproductive technologies or ARTs. The appointment of the commission in 1989 provided an institutional site for the contestation of the “hegemonic” ideas framing reproductive tech­nologies as a progressive and beneficial medical-scientific issue. As ­discussed earlier, women’s organizations and feminist activists believed that a COI could help to reframe reproductive technologies from a purely medical issue to a political and social one with particular consequences for women. They were aware that ideas needed to change. The dominant feminist framing of the issue regarded these technologies as another manifestation of the male medical establishment’s control over women’s reproductive power. Moreover, professional self-regulation as a mode of scientific governance was dismissed in favour of greater government control of the research agenda and practices of the scientific and medical communities. The RCNRT’s broad mandate represented a break from previous government committees and councils that narrowly focused on the legal dimensions of ARTs. Unlike other official bodies, which examined

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ARTs from a strictly legal and medical perspective, the commission was asked not only to address the medical and legal issues involving these technologies but also to examine their implications for women’s reproductive health and well-being and the AHR offspring (RCNRT 1993). The commission’s public hearings also provided a forum for the main interest groups and stakeholders – scientists, medical practitioners, patients, religious groups, feminists, lawyers, and bioethicists – to present their views to the commissioners and the general public. A recurring theme in the public hearings was the need for greater public and government involvement in the regulation of these technologies. While some groups, like the National Committee on the Status of Women, wanted to see a government ban or moratorium on some of these practices, others called for greater representation of underprivileged groups in scientific governance. Increased regulation would ensure that the benefits of reproductive technologies for society outweigh their potential dangers (Immigrant Women of Saskatchewan Organization 1990). While the commission’s broad mandate moved ARTS onto the policy agenda and outside the confines of the medical-scientific community, decisions taken by the commission regarding its research program upheld the privileged status of medical-scientific expertise. One formative decision taken by the commission was to organize the research agenda along scientific and medical practices and developments rather than research themes that explore questions about ARTS and the well-being of society. As a consequence, the recruitment of medical, legal, and scientific experts outnumbered that of social scientists. Over time, medicine and science were regarded as the most important and relevant disciplines to the commission’s work, while sociology, philosophy, and religion were deemed less important by some of the commissioners and senior staff (confidential interviews with staff members). Another important factor that would contribute to the marginali­ zation of non-scientific perspectives was the discursive dominance of “evidence-based research” in the commission’s work (Scala 2008). Evidence-based medicine, as an idea and movement, emerged in the 1980s in response to growing concerns over the lack of evidence supporting the efficacy and safety of medical interventions and practices (Eddy 2005). As a policy tool, “evidence-based management” (EBM) was advanced by the commission as a counterbalance to the influence exerted by medical practitioners, political officials, and interest groups in the management of health care. As is the case with all COIs in this book, the commissioners and staff of the RCNRT were keenly aware of

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the political climate in which they were operating. In the early 1990s, the dominant issue on the political agenda was the need to control and reduce the deficit and to streamline the public sector. This was in tension with the idea of issue expansion based on government doing more in regulation and extending health coverage to include ARTs. Health care was not immune to the federal government’s call for fiscal restraint in public spending. The RCNRT’s approach to reproductive technologies and the recommendations it established for their future regulation reflected current pressures on the Canadian health care system. The commission adopted an EBM framework to evaluate the effectiveness of fertility treatments and related practices in order to determine whether they should be included in the universal single-payer health care system. The evidence-based approach to medical care was used to resolve questions concerning which services should be considered medically necessary, who should have access to them, and who should pay the costs. By adopting EBM as a guiding principle in its research work, the commission subscribed to a hierarchy of evidence that privileged quantitative research designs over qualitative studies (Scala 2008). Feminist research using qualitative research methods was not regarded as “useable knowledge” by the chairperson and the research staff. Actors: Expanding the Constellation Before the RCNRT, the policy area of reproductive technologies was dominated by a specific set of interests, i.e., the medical and scientific communities. Through technology and science advisory boards and research councils, researchers and experts have been disproportionally represented in discussions of “scientific” issues that have broader social and ethical implications, such as reproductive technologies and stem cell research. Citizens groups and laypeople were often excluded from official policy deliberations (Cunningham-Burley and Kerr 1999). The roster of individuals appointed to inquiries and professional committees prior to the RCNRT suggests that medical and scientific experts dominated official deliberations on reproductive technologies. Seg­ ments of civil society, especially women, were largely excluded from the deliberations on these technologies. As Eichler observes, “To the degree that one can judge from names, these committees tend to be overwhelmingly, or even exclusively, staffed by men. Women, who are the child bearers, have so far been largely excluded from the official discourse which is taking place in this area” (Eichler 1988, 14). By the

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1980s, feminist and religious critics began building advocacy coalitions in their efforts to politicize the issue of reproductive technologies. Unlike previous advisory bodies that were composed of experts recruited from the medical, legal, and scientific communities, the RCNRT drew from a broader pool of experts and expertise in the appointment of their commissioners. The multidisciplinary nature of the commission’s mandate and future work was reflected in the diverse disciplinary and professional backgrounds of the seven individuals appointed to the commission. Individual commissioners represented different fields of expertise, including medicine, genetics, law, theology, sociology, and anthropology. The chairperson, Patricia Baird, was a professor of medical genetics at the University of British Columbia and a member of the Science Council of Canada Study Committee on Genetic Predisposition. Bruce Hatfield was a specialist in internal medicine and sat on a number of associations on medical ethics. Martin Hebert and Maureen McTeer brought to the commission their legal expertise. Hebert was a Quebec-based lawyer and ­specialist in medical and health law and had worked in Britain for the Warnock Committee on reproductive technologies and thus had some expertise with COIs. McTeer, a lawyer and self-described liberal feminist, had been actively involved in the coalition of women’s groups that had lobbied the government for the appointment of the royal commission. The social sciences were represented by three of the appointed commissioners. Louise Vandelac, a sociologist and social deconstructionist feminist from the Université du Québec à Montréal published extensively in the field of reproductive technologies and women’s health. Suzanne Rozell Scorsone was an anthropologist who took leave from her work at the Office of the Catholic Family Life of the Toronto’s Archdiocese. Finally, Grace Jantzen, the only non-Canadian appointed to the commission, was a lecturer on the philosophy of religion at King’s College, in London, England. Like Hebert, Jantzen had also worked on the Warnock Committee in Britain and had some COI experience. The inclusion of members representing disciplines other than science and medicine constituted a change in the type of expertise represented by membership in previous inquiries and broadened the ideas brought to the process. Moreover, it suggested that religious and feminist experts were just as important to the debate on reproductive technologies as medical and legal professionals. The commission’s public hearings also provided a venue for new interests to participate in the debate and question the fundamentals of existing policies and programs in this area. Public hearings and “armchair” sessions with commissioners became the primary vehicles for c­itizen

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participation in the commission’s work on reproductive technologies. From 11 September to 29 November 1990, commissioners held public hearings in seventeen cities across Canada. Most of the hearings were held in m ­ ajor cities, except for two, which were held in Yellowknife, Northwest Territories, and Whitehorse, Yukon. The commission publicized the public hearings through advertisements in local newspapers and notices in relevant institutions, including fertility clinics. Individuals and groups who expressed a desire to participate in the public hearings were asked to provide the commission with briefs prior to scheduled presentations in order to prepare commissioners for ensuing discussions. Over 250 individuals and groups, representing a variety of backgrounds, interests, and expertise, participated in the commission’s public hearings. Organizations representing the legal and biomedical professions, women’s advocacy groups, and religious and “pro-family” organizations, sent submissions and/or appeared before the commissioners. For many citizens groups, the RCNRT provided the impetus to discuss these complex issues with their individual members and to formulate their organization’s official stance. The hearings were a mechanism to transmit their ideas and values not only to commissioners and other policy actors, but to the general public through the media. Early on in the public hearings, the issue of reproductive technologies reconfigured established, long-term group alliances in other policy arenas and made allies of traditional adversaries. The most notable example of strange bedfellows was the alliance between, on the one side, anti-abortion and religious groups, and on the other, several women’s organizations, including the National Action Committee on the Status of Women (NAC) and the Canadian Advisory Council on the Status of Women (CACSW). The issue of abortion has traditionally divided these two groups. Women’s groups have pressed for legal and equal access to abortion services for women, while religious groups have opposed abortion on demand and have actively lobbied governments to assign “personhood” status to the unborn. The issue of reproductive technologies, however, had brought these two groups together, insofar as they share a pessimistic perspective on the notion of “scientific” or “technological” progress. Both groups were highly suspicious of science and technology and argued that they have a detrimental impact on the most vulnerable groups in society. For religious and anti-abortion groups, the critique of reproductive technologies was informed by a broader, technological, pessimist viewpoint: in their view, rather than representing scientific progress, biomedical research and advancements represented human beings’ desire

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to dominate nature and control their worlds. As a representative of a religious group stated during a hearing, “Contrary to a widely held view, however, science and technology do not always result in progress for everyone. One need only think of the disastrous consequence of many new industrial and medical techniques, not only on the environment but on human life and dignity” (RCNRT 1990, 19–20). The majority of religious groups that participated in the commission’s hearings argued that reproductive technologies constitute a threat to traditional family values and to the dignity of the unborn. Their position centred on Christian ideals of monogamy and family life, and the link between sexuality and reproduction, with women’s sexuality being linked primarily with their desire for motherhood and family life. Feminist groups, like the NAC, also assumed an anti-science position on reproductive technologies. However, while the opposition of religious groups was based on the preservation of existing social arrangements, like the traditional nuclear family, the NAC’s stringent stance against reproductive technologies centred on their emancipatory project for women. The positions taken by the NAC and the CACSW were embedded in a broader feminist critique of modernity and scientific rationality. During the hearings, the CACSW argued that rather than enhancing or protecting women’s interest, IVF was simply one more manifestation of the over-medicalization of reproduction and of women’s bodies in general. The NAC was especially critical and called for a ban on reproductive technologies. It took on a socialist feminist stance against reproductive technologies, arguing that the drive behind new reproductive technologies emanated from the interests of researchers and capitalists profiting from the development of technologies and drugs aimed at women. Therefore, new reproductive technologies could only serve to maintain women’s subordinate position in society by expanding opportunities for women’s exploitation and oppression, especially poorer women: “NRTs represent the values and priorities of an economically stratified, male-dominated, technocratic science, the same science that has created the basis of much of the environmental destruction our planet now faces. We fear a future that combines Margaret Atwood’s Handmaid’s Tale, where lower-class women are employed as the breeders for a more privileged class, and Aldous Huxley’s Brave New World of manufactured made-to-order-­ people” (National Action Committee on the Status of Women 1990, 1). Disability groups, which have often been ignored in policy discussions, also participated during the hearings. While the medical and scientific

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communities state that their primary interest in reproductive technologies is the management of infertility, disability rights organizations argued that these technologies have, in the majority of cases, been used not to overcome infertility but as a modern form of eugenics. Women undergoing genetic counselling are routinely told that abortion is the only viable solution to disability (Canadian Association for Community Living 1991). These groups advocated establishment of a support system for women having disabled children, and pressed for change in societal values that discriminate against disabled people. Several disability rights groups, such as the Canadian Association for Community Living and Canadian Disabilities Rights Council, criticized the commission for not including in its mandate the disabled as a group particularly affected by reproductive technologies (RCNRT, Winnipeg, 24 October 1990, 28  November 1990). This omission is consistent with the general lack of attention given to the disabled in public policy. As Peters argues, “Because disability has not been considered at the drawing board stage of public policy and institutional development, systemic barriers exist from the outset” (Peters 2004, 39). While the critics called for greater government intervention in the scientific research enterprise, groups representing the medical and scientific communities espoused the merits of professional self-regulation as the most appropriate mode of scientific governance. Many professional organizations defended this system of professional self-regulation, arguing that professional ethics and standards of practice were sufficient to uphold and protect a patient’s safety and interests. For example, groups representing genetic counsellors strongly opposed any legislation that would prohibit investigative prenatal techniques. Instead, they argued that their patients’ interests were already protected by professional guidelines of the Canadian Medical Association (CMA) and the Royal College of Physicians and Surgeons. This stance was reiterated by other private fertility clinics, whose representatives argued that government regulation targeting reproductive technologies was discriminatory, since they were already governed by moral and ethical guidelines established by the medical professional bodies, such as the CMA. For the most part, groups representing the medical-scientific community argued that current institutional arrangements provided more than sufficient safeguards against patient harm. Proponents for professional self-regulation in reproductive technologies were also found among groups representing the legal profession as well as research institutes working on legal matters. The Alberta Civil

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Liberties Research Centre recommended that minimum standards be established to govern assisted insemination and egg donation. These standards would address only the criteria for donor selection, the number of times one donor can be used, genetic screening requirements of donors, and record-keeping practices by physicians and clinics. The research centre argued that these standards should be administered and monitored by the medical profession and relevant professional bodies and should not be made part of the legislation (Alberta Civil Liberties Research Centre 1990). The group’s recommendations against government legislation on reproductive technologies were linked to its strong opposition to state intervention in pregnancy and childbearing. The recommendations put forward by legal organizations and research institutes also reflected a preoccupation with the legal protection of medical practitioners working in reproductive technologies. For example, the Alberta Branch of the Canadian Bar Association dealt with the question of how to reconcile or balance the interests of patients with those of the health care provider. The group argued that while numerous common-law principles and legislation govern health care providers, their applicability to reproductive technologies is limited. Reproductive technologies raise a number of issues within the area of civil negligence that are not addressed by existing legislation, such as interpretation of “standard-of-care” and “duty-of-care” (Alberta Branch of the Canadian Bar Association 1990). However, the group, like the majority of legal organizations, argued against government intervention through legislation and instead reaffirmed the role of professional authority in devising and enforcing guidelines in reproductive technologies. “The determination of whether or not the standard of care has been met is usually assisted by expert opinion from experts working in the area in question” (Alberta Branch of the Canadian Bar Association 1990). The positions taken by several women’s groups on reproductive technologies during the public hearings were inextricably linked to the ongoing debate on abortion in Canada. In 1988, the Supreme Court of Canada struck down Canada’s abortion law on the basis that it violated women’s right to “life, liberty and security of the person” in the Charter of Rights and Freedoms. However, by 1989, a number of events were challenging access to abortion. At the provincial level, injunctions were successfully granted to former boyfriends trying to prevent their partner’s abortion. In May 1990, the Mulroney government introduced and passed Bill C-43 in the House of Commons, which would recriminalize abortion (Brodie, Gavigan, and Jenson 1992).

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The majority of pro-choice groups came out in favour of reproductive technologies, albeit with reservations. As members of a single-issue movement, these groups advanced a position on reproductive technologies that reflected and was consistent with the abortion rights agenda. Indeed, the most notable figure in the abortion rights movement in Canada, Henry Morgentaler, went before the commission in November 1990 and argued that recommendations on reproductive technologies should “protect and respect the individual’s rights … and the maximum freedom of persons to make responsible choices compatible with the common good” (RCNRT 1990). While the majority of the groups expressed their concern over the increased medicalization of pregnancy and childbirth, and the lack of research on the risks posed by these treatments, they sided with the principle that individuals must be able to exercise choice in matters of reproduction. Several feminist groups openly discussed the challenges they faced in devising and articulating a position on reproductive technologies. For example, the Groupe de recherche multi-disciplinaire féministe (GREMF) argued that while reproductive technologies help perpetuate sexism in society by reinforcing women’s primary status as mothers, a woman must be allowed to access fertility treatments after she has been given all pertinent information (RCNRT 1990). Unlike the techno-pessimist positions of religious and feminist groups that called for greater government intervention in the field, these groups were more tempered with their criticism of scientific governance, calling for greater public engagement in decision-making processes and institutions. Informed choice, access to information, and greater representation of underprivileged groups in decision-making were the overriding themes of this discourse on reproductive technologies. While recognizing the social and physical dangers posed by reproductive technologies for their communities, these groups did not call for a moratorium. Rather, they advocated greater control or regulation of the medical and scientific professions by underprivileged groups. Increased regulation would ensure that the benefits of reproductive technologies for society outweigh their potential dangers. The federal government, which had limited jurisdictional authority in this area, was often cited by groups as the most appropriate actor to monitor and regulate developments. Similar to other COIs in this book, to a certain extent, the public ­hearings provided a venue for groups traditionally excluded from dis­ cussions on science and technology policy. Women’s organizations were  especially successful in getting women to be viewed as central

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stakeholders in this policy field. Moreover, the autonomy of the medical-scientific community was regularly questioned by groups advocating for greater public and government involvement in the institutions and processes of scientific governance. However, the critical positions taken by many of the participants during the public hearings did not displace medical and scientific experts in the commission’s work, for a number of reasons. Unlike the professional associations who were heard during the public hearings, many of the women’s groups lacked the resources to conduct extensive research on reproductive technologies and to engage in extensive consultations with their members. As volunteer organizations, women’s and community groups are faced with financial and administrative challenges that impede their capacity to fully participate in a single-issue debate. As Massey explains, “NRTs could be only one focus of the ever-expanding agenda of ‘women’s issues’ in which these chronically under-funded groups are involved … Some found it difficult to develop enough expertise in a new area to present their concerns to an official body” (Massey 1993, 241). Another obstacle facing women and community groups in preparing their briefings was the commission’s hearings schedule. The commission did not allow much time for groups to organize themselves and conduct research necessary to develop their recommendations. The commission announced the public hearings in May 1990 and had originally set the deadline for requests to appear for the end of July 1990. This deadline did not give groups enough time to effectively plan and research their written and oral submissions to the commission and was later postponed in response to protests. In contrast, large professional organizations, like the Medical Research Council, the Canadian Bar Association, and the Canadian Law Reform Board presented substantial and well-researched briefs containing highly technical language. For example, the Canadian Law Reform Board submitted a 200-page document outlining the legal issues raised by reproductive technologies, such as ownership rights ­vis-à-vis ovum and embryos, parental rights vis-à-vis children resulting from fertility treatments, and professional and commercial liability. Much of this research was the culmination of the work of professional committees established before the commission’s appointment. Legal and medical associations had already established advisory committees and research groups to look into reproductive technologies. Other groups also complained about the lack of time and resources available to them to effectively participate in the commission’s

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deliberations. Several participants felt that the commission’s planning schedule and the federal government’s unwillingness to allocate research funds to community groups constituted a lack of respect for non-expert knowledge and alternative perspectives. A representative of a religious group described this sentiment when he stated, “But it may be that we too readily took for granted that, to be useful and relevant, debate about NRTs must be scientific and learned. In fact, most families do not live at that level. Are they, the first to be affected by NRTs, therefore to be excluded from the debate? … Governments are responsible for restoring a balance by allocating research funds equally between those who represent themselves as instruments of progress and those who are trying to evaluate progress” (RCNRT 1991). The commission had an opportunity to relieve the financial burdens plaguing volunteer organizations in their efforts to participate in the commission’s work by providing them with research funds. As mentioned in chapter 5, the Berger Inquiry provided intervener funding for community and Aboriginal groups to conduct research on the impact of the pipeline on their community. However, unaware of this precedent for intervener funding by royal commissions, the RCNRT chose not to provide such funding to participants. This decision left in place the inequities between professional associations and volunteer organizations during the hearings and thus reinforced the status of the legal and medical communities as the commission’s primary and most relevant constituency groups. Another feature of the Berger Inquiry that the RCNRT did not adopt was the establishment of a different public forum for non-experts or community groups to express and exchange their opinions on reproductive technologies. Groups representing professional associations, such as the Canadian Bar Association and the Medical Research Council, participated in the public hearings alongside infertile couples, lesbian and gay rights organizations, and ethno-cultural groups. Commissioners and individuals attending the hearings heard highly technical, specialized briefs from professional associations, followed by very personal accounts of women or couples who had undergone infertility treatments in order to have a child. In the same setting, these very different approaches to understanding reproductive technologies and the languages that accompanied them often seemed irreconcilable. While the emotionally charged presentations of infertile couples garnered a great deal of media attention, they did not overshadow the issues raised by legal and medical briefs presented by professional associations. With

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notable exceptions, the discussions during the public hearings remained quite technical. The commission was unprepared for the wide range of interests and perspectives that would be presented in the public hearings or the communicative strategies that different participants would adopt. Apart from the “armchair” sessions, there was no specific forum for infertile individuals and community groups to express their views without the encroachment of highly specialized discussions put forward by professional associations. One of the commissioners, Louise Vandelac, argued that public hearings should have been organized in settings that were more accessible to individuals directly affected by these technologies, such as hospitals, and community and health centres: “Holding public hearings in big hotels, in the mornings, was not really conducive to opening up the debate to ordinary people. The space was intimidating, with commissioners sitting up front, at a long table, far away from the interveners presenting before us” (interview with Louise Vandelac, 28 May 2001). She argued that the RCNRT should have followed the example of the LeDain Commission on illegal drug use, which held its hearings in local coffee houses and other settings frequented by drug users, so all actors were included. While the structure and organization of the research program accorded different status to different disciplines, the commission’s consultations and public hearings did the same for non-experts in the debate. Decisions regarding the structure and timing of public hearings and consultations resulted in more opportunities for professional organizations to influence the policy debate. As the final report was being written and recommendations being clarified, one-on-one consultations were held between commissioners and individual organizations. The majority of organizations that were invited to speak with commissioners behind closed doors were professional associations. One-on-one consultations also took place with representatives of pharmaceutical and biotechnology industries. These organizations included the Canadian Bar Association, the Royal College of Physicians and Surgeons of Canada, the Medical Research Council, the Pharmaceutical Manufacturers Association of Canada, and Ares-Serono Group and Serono Canada Inc. – a manufacturer of fertility drugs. These consultations took place away from the public and in isolation from other stakeholder or expert groups. While representatives of professional associations were given the opportunity to participate in colloquia that dealt with broad societal questions, such as women’s issues and ethical and religious dimensions of reproductive

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technologies, advocacy groups and experts from other fields were essentially excluded from private consultations between professional associations and the commissioners. For example, the Medical Research Council participated in two one-on-one consultations with commissioners – the last on 11 June 1992 during the period when the final report was being written. The commission’s recommendation of imposing criminal sanctions on certain research practices, such as the creation of human embryos for research, motivated the medical research community to double their lobbying efforts against greater government intervention in biomedical research. In 1997, the federal government had introduced Bill C-47, An Act Respecting Human Reproductive Technologies and Commercial Transactions Relating to Human Reproduction, which, as recommended by the commission, used criminal sanctions to prohibit those uses of new reproductive technologies that were deemed unacceptable. The biomedical research community strongly opposed the bill, arguing that it constituted an intrusion in their field of practice (Montpetit, Scala, and Fortier 2004). An election was called before the bill could be passed. Other legislative attempts were also criticized by the medical community during the 2001 hearings organized by the Standing Committee on Health. For example, the Canadian Medical Association questioned the appropriateness of criminal sanctions in a field of research characterized by new and emerging developments: “Criminal legislation is very difficult to change and is therefore appropriate for activities whose status is unlikely to change over time, such as murder and theft, rather than medical and scientific activities that are constantly developing” (Canadian Medical Association 2001, i). Nonetheless, there were some institutional changes. Institutions Along with expanding the community of actors in official deliberations on ARTs, the commission’s work also brought to the fore the importance of other institutional venues in reproductive technologies, such as the Charter of Rights and Freedom. It also created a policy space for the federal government to occupy with its recommendation for the creation of a new national regulatory body and the use of criminal sanctions for prohibited acts. In Canada, the Medical Research Council of Canada was responsible for developing ethical standards and guidelines for scientific research. It

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oversaw a committee system of research review conducted by local research ethics boards (REBs). In 1989, the Medical Research Council, along with the Social Science and Humanities Research Council and the National Council on Ethics in Human Research announced a Tri-Council Policy Statement for Ethical Conduct in Research Involving Humans. In the same year, a survey of REBs conducted by the National Council on Bioethics in Human Research revealed that 75 per cent of committees included community members. However, many of these lay persons had some affiliation with the research or funding institution and therefore were not considered independent. The survey also found that while experts from non-scientific backgrounds were present on ethics boards, the majority of committee members had scientific or medical backgrounds (National Council on Bioethics in Human Research 1995). The composition of committee memberships suggests that medical and scientific authority was assigned a privileged status in matters involving biomedical research. The lack of consistency and public input engendered by this local system of decision-making was addressed by the commission in its final report. One of the commission’s most significant recommendations, which was subsequently implemented in federal legislation, was the establishment of a national regulatory agency to review reproductive technologies and the accreditation of research facilities and fertility clinics. Many of the interveners who participated in the commission’s hearings called for greater government regulation of reproductive technologies. Groups representing a wide range of interests and professional backgrounds expressed concerns about the federal government’s lack of involvement in the area, arguing that the lack of federal involvement led to interprovincial disparities in licensing requirements and practices, as well as variations in the way research into reproductive technologies is carried out. Moreover, the lack of federal legislation in this area meant that society has had to rely on non-governmental, professional bodies and medical associations to set guidelines and standards of practice. For these reasons, the majority of interveners appearing before the commission supported the idea of a national regulatory body responsible for establishing and enforcing nationwide standards and principles that are consistent with the values and opinions of Canadians. The calls for a national regulatory body on reproductive technologies and for greater federal involvement posed several challenges for the commission. As discussed earlier, the provinces have constitutional jurisdiction over health care. However, the federal government can act to protect

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safety and health. Discussion on the national regulatory commission was dedicated to constitutionally legitimizing federal jurisdictional power to introduce legislation on reproductive technologies. The commission argued that the federal government has the authority to intervene in reproductive technologies under its constitutional responsibility to legislate for peace, order, and good government in matters of national interest and under the Canadian Criminal Code. For example, under the Criminal Code, the federal government can implement recommendations proposed by the commission, including legislating against the commercialization of human reproductive materials and surrogacy arrangements; banning research involving ectogenesis, cloning, the creation of human/ animal hybrids; and protecting pregnant women against unwanted medical treatment (RCNRT 1993). While the federal government can prohibit unsafe medical practices under the Criminal Code, there is no framework for evaluating and monitoring developments and practices that are not prohibited. The final report argued that the federal government’s responsibility for “peace, order and good government” gives it the authority to establish a national regulatory agency to evaluate and monitor reproductive technologies and practices across all provinces.1 According to the framework outlined in the final report, the National Commission on Reproductive Technologies (NCRT) would act like any  other regulatory agency, such as the Canadian Radio-Television and Telecommunications Commission and the National Transportation Agency. The NCRT would perform a number of functions, including licensing and monitoring facilities; setting standards and guidelines; collecting and recording information; interprovincial consultation and cooperation; and monitoring technological and research developments and practices. The commission would comprise five subcommittees responsible for licensing the provision of different categories of services, and membership of each subcommittee would reflect a diversity of ­professional backgrounds, expertise, and social experiences. The NCRT would comprise both experts and non-experts, with women making up at least half of the members. Members would also have to represent the interests of other underprivileged groups, including ethno-cultural groups, Aboriginal communities, the disabled, the infertile, and the economically disadvantaged. The NCRT would also include members who represented other areas of expertise, including ethics, law, and the social sciences. Another institutional site that gained prominence during the commission’s deliberations was the Charter of Rights and Freedom. In the past,

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fertility specialists had tremendous discretionary authority when determining access to treatments, often refusing treatment to individuals who did not conform to the stereotypical married and heterosexual couple. The commission’s review of admission policies of individual IVF clinics found that they varied significantly across the country and that treatment facilities often ruled out prospective patients of IVF on the basis of personal biases (Stephens and McLean 1993). For example, prospective patients were sometimes refused access to treatment because of “doubtful parenting ability” or because they were lesbian or unmarried women. The commission argued discriminatory admission practices went against the Canadian Charter of Rights and Freedom and other provincial and federal human rights legislation. The commission recommended that access to IVF treatment be based on legitimate medical criteria and that admission policies set up by IVF treatment facilities should not discriminate on the basis of marital status, economic status, or sexual orientation. Medical standards would therefore provide a neutral and objective criterion for determining access to fertility treatments. Relations As is the case with most of the COIs in this book, the RCNRT mandate required mechanisms to obtain and bring together expertise from a variety of different backgrounds and to elicit the views of ordinary Canadians. The commission’s research program and public hearings were meant to gather both expert and non-expert perspectives on a very complex and multifaceted issue. However, the real challenge that faces every commission, including the RCNRT, is how to accommodate or represent different perspectives and encourage an open debate on a policy issue. The capacity of commissions to facilitate policy learning and to represent alternative perspectives on issues lies with the commissioners and the governance regime that informs their daily decision-making. As Jenson argues, commissioners can play a crucial role in ensuring an open research agenda and in providing the link between what is heard during the public hearings and the research that is being undertaken by the commission’s staff and contracted researchers (1994). The model of learning adopted by the commissioners as well as the commission’s governance regime greatly determine the framing of policy issues. From the beginning, the working relationship between certain RCNRT ­commissioners was tense and conflict-ridden. Four of the original commissioners – Maureen McTeer, Louise Vandelac, Maurice Hebert, and

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Bruce Hatfield – publicly criticized the technological and scientific bias of the research program as well as what they perceived to be chairperson Baird’s autocratic management style. The research themes of the RCNRT were developed early on by the chairperson and John Sinclair, the executive director of the commission. The input of other commissioners on research matters was limited to providing suggestions after the research program had been implemented. This lack of involvement was criticized by four of the commissioners, many of whom disapproved of reproductive technologies and wanted greater involvement in developing the research program. In an unprecedented move, the four dissenting commissioners filed a suit against Baird and the federal government under the Inquiries Act. In the statement of claim, the four dissenting commissioners stated that they had been prevented from participating in any meaningful way in several areas of the commission’s work, including financial decisions, management activities, and the public hearings process. The commissioners also felt that their expertise was not being used in the commission’s work, thereby undermining the commission’s original commitment to multidisciplinary research. The commissioners argued that responsibility for these problems lay squarely with Baird and her management style: Over time it became apparent to the plaintiffs [Commissioners McTeer, Hebert, Hatfield, and Vandelac] that all substantive decisions about every aspect of the Commission’s work were being made under the authority of one person, namely the Chairperson, Patricia Baird … In fact, the plaintiffs have been progressively distanced and prevented from participating in every important decision concerning the Commission’s on-going operations including the nature of the Royal Commission’s research, its consultation and communication program and its organizational and financial priorities with the result that any notion of collegiality and multidisciplinarity within this Commission has been illusory. (Statement of Claim (Trial Division), filed by Martin Hebert, Louise Vandelac, Bruce Hatfield and Maureen McTeer (Plaintiffs) against Her Majesty the Queen in Right of Canada, the Attorney General of Canada, and Patricia Baird (Defendants), 6 December 1991)

The management style of the chairperson, her influence over the r­esearch program, personality conflicts, and competing interests all contributed to an acrimonious relationship between, on the one hand,

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the four dissident commissioners and on the other hand, Baird and her supporters. However, the conflict between Baird and Vandelac, while influenced by these factors, was primarily a result of the inability to reconcile their cognitive maps derived from their academic and professional backgrounds. Baird, a physician, strongly adhered to the medicalscientific model while Vandelac sought to deconstruct and critique it. Vandelac wanted to broaden the debate about the role of medicine and scientific knowledge in a society and their implications for certain segments of society. “We have to ask basic questions: What is infertility? What is medicine? What is it for?” (interview with Louise Vandelac). She viewed the medical model as intrinsically flawed and in need of examination in the commission’s work. As one former staff member explained in an interview: “She was a Foucault-style deconstructionist. What she would do is cut away, as she perceived it, all the intellectual dishonesty until you get back on solid ground and rebuild. What do you take as givens? What do you take as precepts? I sense that Louise would have had very few precepts and would have opened everything” (interview with staff member, 13 September 1999). This deconstructionist project, according to some staff members, was antithetical to Baird’s scientific perspective, and trying to blend and operationalize it would have been difficult to accomplish in a time-limited organization (interview with staff member, 13 September 1999). Ulti­ mately, the concentration of decision-making authority with Chair­ person Baird, along with her professional background as a geneticist, had a significant impact on the RCNRT’s generally positive outlook on reproductive technologies and science in general. Conclusion The contributions of the RCNRT to policy change in reproductive technologies and biomedical research were mixed. As a representational site for contending viewpoints on the issue, the RCNRT did provide groups often excluded in science and technology policy deliberations an opportunity to weigh in on the issue. The commission’s mandate also expanded the set of ideas related to reproductive technology policies and went beyond the narrow medical-scientific framing of the issue by investigating the impact of these technologies on society and on women in particular. The actual appointment of a royal commission on the subject brought the issue onto the public and political agenda and launched a broader debate on the role of government and the public in scientific governance.

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In terms of programmatic changes, the RCNRT recommendations did influence Canada’s legislation on ARTS, Bill C-6, Assisted Human Reproduction Act, which was enacted in 2004. The establishment of a national regulatory agency2 empowered to establish a system of certification for clinics offering medically assisted procreation services can be traced back to the RCNRT recommendations, as can the bill’s two categories of activities: “prohibited activities,” which cannot be carried out under any circumstances, and “controlled activities,” which can be carried out but in conformity to the legislation and regulatory framework (Bill C-6, 2004). The commission’s recommendation that infertility treatments be available to Canadians regardless of marital status and sexual orientation was also included in Bill C-6. In terms of challenging the dominant ideas and medical framing of the issue, the commission was less successful, for a number of reasons. Several “formative” decisions regarding the commission’s research program and public consultations directly or indirectly consolidated the authority of medical-scientific experts and pushed to the margins the perspectives of expert and non-expert groups critical of reproductive technologies. For example, the scientific and technological themes of the research program and the commission’s management style led to the hierarchical ordering of forms of knowledge, with scientific knowledge assigned the greatest importance. While the structure and organization of the research program accorded different status to different disciplines, the commission’s consultations and public hearings did the same for non-experts in the debate. The commission’s decisions regarding the structure and timing of public hearings and consultations ultimately resulted in more opportunities for professional organizations to influence the policy debate. NOTES 1 In 2010, the Supreme Court of Canada ruled that certain elements of Bill C-6 were unconstitutional because they exceeded the federal government’s legislative powers under the 1867 Constitution Act. 2 Assisted Human Reproduction Canada, the federal agency created in 2006 to enforce Bill C-6, was closed in March 2013.

8 The Royal Commission on Aboriginal Peoples: An Exercise in Policy Education Peter H. Russell

Introduction The Royal Commission on Aboriginal Peoples (RCAP) was a commission of inquiry that functioned at two levels. At one level it operated as an inquiry into what had gone wrong in an important area of public policy – relations with Aboriginal peoples – and what new policies could be put forward to improve the situation. But RCAP had a deeper, existential dimension that went beyond policy analysis and recommendations to rethinking the very nature of the country. For many Canadians who identify as Aboriginal, perhaps for most of them, their belonging to the Canadian state was problematic. It is that fundamental question – what is Canada and what should be the relation of Aboriginal peoples to Canada – that they wanted to address through the royal commission. The theoretical framework of this volume is helpful in thinking about what RCAP accomplished and what it failed to accomplish. Through the five years it was in session, RCAP functioned as a temporary institutionalized arena affording an opportunity to work on an area of policy in a manner that was not possible through the institutions of government. It brought together representatives of Aboriginal peoples on an equal basis with highly respected non-Aboriginal leaders to study the past and present of the Aboriginal relationship and consider how that relationship might be improved. The principle of equality ran through the structure and modus operandi of the commission. That was RCAP’s strength. But it was also its weakness, for in the Canadian state, Aboriginal people, politically speaking, are far from equal to the nonAboriginal population. It is not only that persons of Aboriginal background and identity constitute only 3 per cent of Canada’s population

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but also that the great majority of Canadians know virtually nothing about the Aboriginal peoples. While RCAP aimed to remedy that knowledge deficit, it could never have done so quickly and thoroughly enough to build sufficient public understanding and support for its recommendations. Like the Gordon Commission and the Romanow Commission (see chapters 3 and 10 respectively in this volume), the impact of RCAP on policy change was marginal and limited. Context: A Flashpoint Event Triggers a Broad Inquiry The establishment of RCAP was triggered by the 1990 Oka crisis. In the spring of 1990 the Mohawks of Kanehsata:ke built a camp in the Pines, the heart of their traditional territory, and blocked a road running into the Pines from the nearby town of Oka in order to resist the town’s approval of using their land to add nine holes to a golf course. They were quickly joined by the Mohawks of Kahnawa:ke, whose reserve lies just south of Montreal across the Mercier Bridge. These actions resulted in a summer-long standoff with the Canadian army and the Quebec police that attracted enormous media attention in Canada and internationally (see York and Pindera 1991). Aboriginal communities across Canada rallied in support of the Mohawks, in some cases blocking roads and railway lines. As is usual with these “flashpoint events” that arise when an Aboriginal community, which has seen its rights encroached upon for many years, takes action to prevent a further injustice, the media and much of the public treated Oka as primarily a law-and-order crisis (see Russell 2010). But Prime Minister Mulroney sensed that underlying the Oka crisis were deeper issues about the Aboriginal relationship, and decided that a royal commission was needed to examine those issues. Mulroney asked Brian Dickson, the recently retired chief justice of Canada, to go across Canada and consult with Aboriginal communities about the commission’s composition and terms of reference. When Dickson returned, he met with the prime minister, who accepted his recommendations on both structure and mandate. There would be seven commissioners, four of whom would represent the main categories of Aboriginal peoples in Canada: George Erasmus, a former grand chief of the Assembly of First Nations; Viola Robinson, a former president of the Native Council of Canada (the organization representing non-status Indians); Mary Sillett, a former vice-president of the Inuit Tapirisat of Canada; and Paul Chartrand, a university professor and leading Metis scholar. The three non-Aboriginal commissioners were René Dussault,

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a justice of the Quebec Court of Appeal; Bertha Wilson, a former justice of the Supreme Court of Canada; and Allan Blakeney, a former NDP premier of Saskatchewan. Erasmus and Dussault were the commission co-chairs. The commission’s terms of reference were extremely broad: “The Com­ mission of Inquiry should investigate the evolution of the relationship among aboriginal peoples (Indian, Inuit and Metis), the Canadian government, and Canadian society as a whole. It should propose specific solutions, rooted in domestic and international experience, to the problems which have plagued those relationships and which confront aboriginal peoples today. The Commission should examine all issues which it deems to be relevant to any or all of the aboriginal people of Canada” (RCAP 1996c, 2). Notice that the commission’s mandate calls for an investigation of “the relationship” of Aboriginal peoples with Canada – the deep underlying issue – as well as “specific solutions” to specific problems. The commission was appointed on 26 August 1991. Its final five-volume report was released in November 1996. Ideas: Contesting Perspectives – Dealing with a Social Problem vs Decolonization Underlying the Royal Commission on Aboriginal Peoples was an ideational contestation of a most fundamental kind. To understand this contestation it is essential to recognize how the relationship of Aboriginal peoples was changing in the two decades leading up the establishment of RCAP. In 1969 the Trudeau government issued a White Paper on “Indian policy,” which identified the conditions of native peoples in Canada as constituting a serious social problem (see Weaver 1981). The thrust of the paper was to end all forms of discrimination against Native peoples and extend to them all the rights and opportunities of Canadian citizenship. The Indian Act was to go. Indians and other Native peoples would be treated just like other Canadian citizens. Indians were expected to abandon their tribal identity and their treaty relationships with Canada. While Indigenous peoples welcomed the end of political, social, and economic discrimination, they firmly rejected the idea of abandoning their Indigenous identities, their treaties, and what they regard as their distinctive rights.

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There followed through the 1970s and 1980s a continuing effort by the federal government to find some alternative to its assimilationist policy that would win the approval of Aboriginal peoples. In part this effort was led by the Supreme Court of Canada, which in its 1973 decision in Calder recognized the title of Aboriginal people to traditional lands that they ­occupied and had not ceded through treaty to the Crown.1 Adjustments in federal policy produced some important changes that moved in the direction of recognizing the distinct collective identities and rights of Aboriginal peoples. In response to Calder, the government introduced a comprehensive land claims process for making land settlements with First Nations that had never been party to land cession treaties, and a specific claims process for dealing with breaches of historic treaties and governments’ legal obligations to Indigenous peoples. When Canada’s Constitution was patriated in 1982, a clause was added to the Constitution that recognizes and affirms “the aboriginal and treaty rights of the aboriginal peoples of Canada.” The federal Parliament gave all-party approval to a policy of self-government for Aboriginal peoples. However, none of these new policies met the demand of Aboriginal peoples for recognition of the inherent sovereignty of their societies and the right of those societies to agree to the terms on which they were willing to be part of Canada. In a nutshell, Aboriginal communities, their leaders, and policymakers were pushing for a relationship with Canada that would overcome their colonization, while the Canadian government and most Canadians did not think of Aboriginal societies as colonized societies but as the most underdeveloped sector of Canadian society. By the 1990s, there was broad agreement among Canadians and their leaders, Aboriginal and non-Aboriginal, that the significant gap in living standards between Aboriginal and non-Aboriginal Canadians should be closed. Closing that gap was one of the driving ideas that led to the establishment of RCAP. But there was no agreement on how that gap should be closed or whether that social welfare concern was the priority objective of Aboriginal policy. Most Aboriginal leaders – Indian, Inuit, and Metis – saw governments that they lead and control as being the appropriate agencies for improving the well-being of Aboriginal peoples, and believed this requires that their societies recover responsibility for their own well-being and secure access to the resource base of their traditional lands. Non-Aboriginal political leaders at the federal level and most of the electorate to which they are accountable continued to view the federal government as the primary instrument for creating and

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delivering Aboriginal policy, either directly or through devolution, and viewed that policy primarily as a way of completing the Canadian welfare state rather than as a means of decolonization. That was the fundamental contestation of ideas that underlay RCAP. Institutions: RCAP as Temporary Institution for Policy Change For decades preceding the establishment of RCAP, the primary institution for making and implementing policy in relation to Aboriginal peoples was a department of the federal government. At the time of RCAP, that department was called the Department of Indian Affairs and Northern Development (DIAND). DIAND’s jurisdiction covered all members of First Nations whom the federal government recognized as status Indians, as well as the Inuit peoples of Canada. In an effort to minimize its responsibilities, the federal government excluded the Metis from DIAND jurisdiction and appointed the minister of another department to serve as “the interlocutor” for Metis people. The other federal institution that was coming to play an important role in Aboriginal affairs was the Supreme Court of Canada. Its decisions in the 1980s, like Calder, were out in front of government policy. They were having some effect in pushing the federal government to pay more respect to its legal obligations to Aboriginal peoples, including those arising under historic treaties. The court’s 1990 decision in Sparrow,2 its first on the meaning of  the “existing aboriginal rights” recognized in the Constitution Act, 1982, indicated that it would give a broad and liberal interpretation of these rights. The federal Parliament and its committees had come to provide a public forum for Aboriginal peoples to air their grievances and to facilitate Aboriginal input on changes proposed to the Indian Act and other ­federal policies. The 1983 Joint Parliamentary Committee’s Penner Report supporting Aboriginal self-government, though generous in spirit, showed that Canada’s parliamentarians held to the colonialist assumption that the authority to govern themselves came from Parliament rather than the Aboriginal peoples’ Creator. Neither the government of Canada nor Aboriginal peoples saw Parliament as an important policymaker. Provincial and municipal governments played virtually no role in Aboriginal policy. Though the provinces were the beneficiaries of the historic treaties that were interpreted as having ceded vast areas of land and resources to the Crown, they were happy to leave responsibility for supporting the social services and infrastructure of Indian reserves to

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the federal government. Though municipalities were aware of growing Aboriginal urban populations, they felt no obligation to develop policies to deal with this development. Across the country, governments operated on hundreds of Indian reserves. But these governments were essentially policy-takers, not policymakers. By 1990, reserves were no longer subject to the hands-on management of a federal Indian agent, and band governments were staffed by members of the reserve community, but reserve communities continued to be subject, in both the substance of policy and the culture of governance, to the colonialist Indian Act and the close supervision of DIAND. The same top-down control was evident in the comprehensive and specific claims processes introduced in the 1970s, which were unilaterally designed and managed by the federal government. The Assembly of First Nations (AFN), the Native Council of Canada, the Inuit Tapirisat of Canada, and the Metis Nation had emerged as advocacy organizations for the four components of Canada’s Aboriginal peoples. Their advocacy, especially the AFN’s, may well have been a factor in inducing Prime Minister Mulroney to establish RCAP. They were often used by the federal government as sounding boards on policy issues, and they were directly involved in negotiating the Charlottetown Accord package of constitutional proposals. But these pan-Canadian umbrella organizations had neither the mandate nor the capacity to initiate and implement policies for the nations or peoples on whose behalf they spoke. By virtue of its structure, RCAP was markedly different from DIAND or any of the other institutions that had been playing a role in Aboriginal policy. It was a bicultural institution in which Aboriginal and non-­ Aboriginal Canadians worked together to understand the past of the Aboriginal relationship and shape its future. Its bicultural structure extended from the commissioners themselves to the staff and the commission’s practices and procedures. The co-chairs of research were Marlene Brent-Castalano, a Mohawk scholar and teacher, and David Hawkes, a non-Aboriginal consultant and scholar. The research teams that worked in key policy areas were similarly structured. The knowledge base on which RCAP and its researchers drew and to which they contributed combined the leading works of non-Aboriginal researchers and writers and the work of Aboriginal scholars and material available from community archives and elders. The Canadian government had made little use of these Aboriginal sources of knowledge in the past. The commission’s advisory committee on research was made up of an equal number

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of Aboriginal and non-Aboriginal scholars. At all commission meetings and hearings, while the conventions and rules of order of mainstream Canada were followed, there were always opening and closing ceremonies and a prayer to the Creator that imbued participants with a sense of the spirituality that has been retained in Aboriginal cultures. During its five-year life, this bicultural institution was the centre of policy initiatives in Aboriginal affairs. DIAND continued to administer the Indian Act and other existing policies, but the research, public discussion, and negotiation of new policies was left pretty much to RCAP. The structure of the commission meant that for the first time since 1764, when William Johnson, representing the British government, met with representatives of twenty-four Indian nations to negotiate the Treaty of Niagara (see Borrows 1997), there was an effort to work out policies on  relations with Aboriginal people that was not dominated by non-­ Aboriginal governments. In a number of policy fields, including banking, criminal justice, health delivery, labour market access, and urban affairs, the commissioners met with key policymakers and stakeholders to explore better ways of accommodating the culture and serve the interests of Aboriginal peoples. The commission worked on policy issues that had been largely ignored by the federal government but are of great concern to Aboriginal peoples. These included the consequences of relocating Inuit families from northern Quebec to the high Arctic, the high rate of suicide in Aboriginal communities, the social consequences of residential schools, the possibility of a bicultural tribunal to settle disputes about treaties, and the necessary steps for dismantling the Indian Act and DIAND. The commission was also an active player in the constitutional field. Soon after RCAP’s establishment, the constitutional negotiations that led to the Charlottetown Accord began. A key issue in drafting the accord was whether it would recognize Aboriginal peoples’ inherent right of self-government. In response to a request for advice on this issue from Joe Clark, minister of constitutional affairs, the commissioners submitted a paper giving the grounds for recognizing the inherent right principle in the accord. Subsequently, the federal, provincial, and territorial leaders, and leaders of the Aboriginal organizations participating in the Charlottetown Accord process agreed that “the Constitution should be amended to recognize that the Aboriginal peoples of Canada have the inherent right of self-government within Canada” (Law Reform Commission of Canada 1992, 41). In effect, the commissioners negoti­ ated the inclusion of this clause in the accord. The qualifying phrase

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“within Canada” was the federal government’s condition for accepting the inherent right. In the end, the Charlottetown Accord died after its rejection by 54 per cent of the electorate in the 1992 referendum. But post-mortem analyses found that the sections of the accord on Aboriginal rights were not a significant factor in the accord’s referendum defeat. The next year RCAP published Partners in Confederation: Aboriginal Peoples, Self-Government and the Constitution, setting out for the Canadian public the case and the process for implementing Aboriginal peoples’ inherent right to self-government (RCAP 1993c). In 1994 the commissioners made the case for pursuing this agenda at a federal-provincial meeting in Toronto. It is not surprising that an institution structured as RCAP was should propose a similarly structured institutional matrix for Aboriginal policy in the future. The main thrust of RCAP’s recommendation for restructuring the Aboriginal relationship is that nation-to-nation agreements should be negotiated with Aboriginal peoples, giving each of them the primary responsibility for the policies of their community, and that the principal Canadian institution should be a new royal proclamation (similar to the royal proclamation that Sir William Johnson presented at Niagara in 1764) committing Canada to a modern treaty process and setting up the machinery for facilitating and monitoring these agreements. Such a structure was very much in line with Partners in Confederation, but it was not in line with the institutional set-up in the immediate post-commission world. In post-RCAP Canada, DIAND resumed its leadership in Aboriginal policy. While DIAND continued to be the primary policymaking institution of the federal government, it exercised its policymaking role in a less exclusive and unilateral manner. Governments directed and controlled by Aboriginal peoples began to play a larger and more autonomous role. Some early examples of such developments in the decade following RCAP are: •

the establishment of Nunavut as a new self-governing territory in the Eastern Arctic with a public government accountable to a population that is 85 per cent Inuit • the federal government’s commitment to include self-government in land claims agreements • the establishment of the Nisga’a government under the 1999 Nisga’a Agreement with Canada and British Columbia • new federal funding programs to provide multi-year block grants to reserve-based block grants with reserve-based First Nations

162  Commissions of Inquiry and Policy Change •

Yukon First Nations taking on a menu of government responsibilities under the Yukon Umbrella Agreement • tribal councils, through federal-provincial agreements, in Nova Scotia and Saskatchewan taking over responsibility for education, health, and child welfare responsibilities • some First Nations, like the Mohawks of Kanawake:ke, through informal bilateral agreements with federal and provincial agreements, taking over responsibility for policing, education, resource development, and environmental protection While these developments and others like them were not the direct result of RCAP’s recommendations, they were all in line with Gathering Strength, the federal government’s official and very gradualist response to RCAP. Although this approach to Aboriginal policy was far from mirroring RCAP’s vision, it involved a much more complex institutional matrix and one much less unilaterally controlled by Ottawa. Another institutional change working in the same direction that can be partially related to RCAP is the increased participation of provincial and territorial governments, as well as municipalities, in policy on Aboriginal peoples. RCAP, with its strong and respected group of Aboriginal commissioners, was able to break the ice on developing Aboriginal relations with jurisdictions other than the federal Crown. The commission’s focus on resource and governmental agreements as the key to future policy made it cognizant of the political impossibility of excluding provincial and territorial governments from the negotiation and implementation of such agreements. Its analysis of the ways of better serving Aboriginal peoples needs and interests in urban areas gave municipalities, for the first time, an agenda of policy opportunities in this field. Actors: The Commissioners Policy Team and Two Publics During the period in which RCAP was carrying out its mandate, the seven commissioners as a group led the discussion of Aboriginal policy in Canada. In this sense, from 1991 to 1996, they were the key actors in Aboriginal policy. The DIAND minister and senior DIAND officials continued to manage existing policies, but policy development by the department was basically on hold during the RCAP years. The principal exception was negotiating the recognition of Aboriginal rights in the Charlottetown Accord. Prime Minister Mulroney, Constitutional Minister Clark, the provincial premiers, territorial leaders, and leaders

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of the pan-Canadian Aboriginal organizations were the leading actors in that exercise. But, as noted above, in that field too, the RCAP commissioners made a significant contribution. On some COI’s with three or more commissioners, the chair tends to play the dominant role. That was surely the case with the Gordon Commission and the Macdonald Commission (discussed in chapters 3 and 6 in this volume). But there were good reasons for this not being the case with RCAP, whose overarching purpose was to have Aboriginal and non-Aboriginal Canadians examine together their past relationship and how to make it better. That mandate required a continuing conversation among the commissioners on all issues. Moreover, each of the seven commissioners had a representative role to ensure that the perspectives of each section of the Aboriginal community and of major parts of the country were considered in the conversation. In the case of RCAP, the phrase primus inter pares (first among equals) is an apt description of the role played by the co-chairs, René Dussault and George Erasmus. One of them presided at both public and in-house meetings, and on occasion – for instance, discussing their final report with Prime Minister Chrétien – they acted on behalf of the commission. But in discussing all the policy issues, the positions taken in RCAP’s numerous publications, the substance and wording of its final report, as well as the work of the commission, the seven commissioners treated one another as equals. Indeed, the commissioners strove for and achieved unanimity in all of their decision-making. The imperative of consensus accounts for the change that took place in the composition of the commission in 1993 when Allan Blakeney resigned from the Commission and was replaced by J. Peter Meekison. Peter Meekison is a leading Canadian political scientist in the field of federalism who had been on the Faculty of the University of Alberta since 1967 and had served as deputy minister of federal and intergovernmental affairs for Alberta from 1977 to 1984. Allan Blakeney disagreed with the other commissioners on an issue that is fundamental to one’s understanding of the status of Aboriginal people in Canada – the question of sovereignty. Mr Blakeney, a lawyer, with a strong background in constitutional law, believed that as a matter of law all sovereign powers of governments were exhaustively distributed by Canada’s Constitution to the federal and provincial legislatures. This meant that any governmental powers exercised by Aboriginal governments must, in legal terms, have the status of powers delegated by the federal Parliament or provincial legislatures. The other commissioners believed that Aboriginal

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peoples had an inherent right to self-government so that the authority to govern themselves did not depend on grants of powers from the federal and provincial legislatures. Premier Blakeney felt the difference of opinion on such an important philosophical and constitutional question was too fundamental for him to continue as an RCAP commissioner. RCAP was principal from many COIs whose mandates combine an investigation of alleged wrongdoing with consideration of policies needed to diminish the likelihood of such wrongdoing in the future, such as the Krever Inquiry, the Walkerton Inquiry, or the Goudge Inquiry (discussed in chapters 9, 11, and 12 respectively in this volume). RCAP is similar to the COIs on Canada’s economic future – the Macdonald Commission on the Economic Union and Development prospects for Canada (see chapter 6), and the Romanow Commission on Health Care (see chapter 10) – in that there was no “who-done-it” aspect to its mandate. RCAP, like these other COIs, was a pure policy COI with no target culprit on trial before the commissioners. Also, unlike the Mackenzie Valley Pipeline Inquiry, (see chapter 5 in this volume), which was very much concerned with Aboriginal peoples, RCAP did not focus on the implications of a specific economic proposal. For a COI with such a wide policy-oriented mandate, the main actors in addition to the commissioners were those who directed and carried out research for the commission. RCAP, like the Macdonald Commission, had an extensive research program. But its approach to research differed fundamentally from that of the Macdonald Commission. Its research was tied very closely to the work of the commissioners and their ideas on the topics their final report would cover. In other words, the commission’s research agenda was driven by the commissioners’ interests and concerns. The co-directors of research, Marlene Brant Castellano and David Hawkes, worked closely with the commissioners. They attended meetings of the commissioners to ensure that the research being undertaken addressed the issues that the commissioners wished to consider. They reported frequently to the commissioners on research in progress, arranged for leaders of research teams to meet with the commissioners, and fed the findings and ideas emerging from research into the commissioners’ discussions. One consequence of this close integration of research with the commissioners’ concerns is that this COI’s research agenda was not as wide open as that of the Macdonald Commission. This meant that the commission did not sponsor research that propounded the view that Aboriginal ­peoples in Canada had not been “colonized” or the view that on balance

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colonial subjugation may have done more good than harm. In that sense the research was not ideologically balanced. But it did reflect the most fundamental beliefs of all of the final seven commissioners. RCAP’s Research Advisory Committee (which the author chaired) included leading scholars from the academic disciplines central to the commission’s work and different parts of the Aboriginal community. The committee developed guidelines for peer review of research reports and ethical guidelines for conducting research in Aboriginal communities to ensure that research done under commission auspices met the highest standards of the academic world and the Aboriginal community.

The Two Publics RCAP’s other principal source for input into its policymaking was its program of public consultation. If the public can be thought of as an actor in the work of a COI, in the case of RCAP, the public, in effect, formed two actors. The Aboriginal peoples of Canada constituted one public – one that was thoroughly engaged in the commission’s work. This could not be said of the other public, the non-Aboriginal general public of Canada. This public, the great majority of Canadian citizens, never really embraced the basic mandate of the commission nor engaged in its work. Therein lies the key to the very limited success of RCAP as a COI whose mandate largely aimed at public education. The non-engagement of the Canadian general public was not the result of a lack of effort by the commission to interest Canadians in its work. For a year and a half, from April 1992 to late 1993, the commissioners spent most of their time in a program of public hearings that took them to ninety-six communities, including meetings in major cities and towns (RCAP 1993c, Appendix C). The commission produced a steady stream of publications to inform those attending hearings about the major issues and to provide up-to-date summaries of testimony that had been given. But the interest and turnout for commission events was by far greater in communities where the population was entirely or mainly Aboriginal. Even in urban settings, submissions from Aboriginal groups and individuals often dominated the hearing. More successful in securing non-Aboriginal participation were the “round tables” that the commission organized in fields such as health and healing, justice, economic development, and urban issues. While the round tables secured input and ideas from many non-Aboriginal leaders in important fields of policy, and in some cases produced valuable publications (see,

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for example, RCAP 1993a, 1993d, 1993e, and 1996a), they received scant media coverage. With hearings that did not produce startling new evidence about a scandal or a policy failure or proposal, the media largely lost interest in RCAP until its final report was released. The commission’s two executive directors, Jean Fournier (August 1991 to April 1993) and Anthony Reynolds (April 1993 to November 1996), both senior public servants with substantial communications experience, worked hard at media relations. But despite their efforts and a steady stream of very readable publications, neither the print or broadcast mainstream media had much interest in the commission as it went along. Unlike the Romanow Commission, which dealt with a policy issue of great concern to all Canadians, RCAP as a policy commission focused on a policy area of marginal concern, at best, to most Canadians. This may be the key to the lack of attention it received from the media.

A Change of Actors In the second year of RCAP’s mandate a federal election resulted in a  Liberal government led by Jean Chrétien replacing the Mulroney Conservative government that had created the commission. A shift from the government that created a COI to a one directed by its principal political opponent might be viewed as weakening government support for the COI. In the case of RCAP, while no doubt Prime Minister Chrétien was less committed to the commission than Brian Mulroney had been, the change of government, with one exception, did not result in any marked reduction of support for the its work. Senior DIAND officials continued to provide information and, whenever called upon, advice – in particular on the issues that would need to be addressed as a consequence of terminating the Indian Act. The one cutback in government support for RCAP was the Chrétien government’s refusal to publish the many research studies it had commissioned and that had been peer-reviewed. Digital versions of these studies were made available on a website, but the absence of print copies considerably reduced RCAP’s long-term educational impact. Robert Nault and Ron Irwin, the DIAND ministers during this first Chrétien administration, left the commission to do its work as they went about administering existing policies. Minister Irwin, who received the commission’s report a week before its release, took time off to read through its entire five volumes, and his response was extremely positive.

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Soon after the final report’s release, Irwin had to leave government and politics for health reasons and did not run in the 1997 election that returned the Chrétien Liberals to office. Jane Stewart became the new DIAND minister and was responsible for organizing the government’s response to the RCAP report. That response came on 7 January 1998 in a thirty-six-page booklet, entitled Gathering Strength: Canada’s Aboriginal Action Plan (Indian Affairs and Northern Development Canada 1997). At the level of generalities, Gathering Strength responded positively to the two main prongs of the RCAP report. It committed the government of Canada to working with Aboriginal nations to enhance the exercise of their inherent right to self-government and to improve the services and infrastructure of their communities. But the government did not respond specifically to the hundreds of detailed recommendations in the RCAP report. Nor was it phrased in language consistent with central ideological tenets of RCAP. Nowhere did the government response use the language of colonialism and post-colonialism. The mantra for its “action plan” was “Renewing the Partnership.” It affirmed the importance of treaty relationships but saw them as “a key basis for the future relationship” not “the key basis” for future relations of Aboriginal peoples with Canada. While the response recognized Aboriginal peoples’ inherent right to self-government, it neither affirmed nor denied that Aboriginal peoples retain some sovereign powers – the issue on which Premier Blakeney left the commission. For many Aboriginal people and for many who had been involved in the RCAP process, Gathering Strength was disappointing. But it would seem doubtful that the unwillingness of the government of Canada to make a stronger response can be explained by the change of government from the Mulroney Conservatives to the Chrétien Liberals. The challenges posed by the two main prongs of the RCAP proposals would have been extremely difficult for any federal government to meet fully at that time. To close the gap between the well-being of Aboriginal communities and the rest of Canada, RCAP recommended that government spending targeting Aboriginal peoples – already at $11.6 billion a year (57 per cent higher than for Canadians generally) – be increased over five years by $1.5 to $2 billion and sustained at that level for the next fifteen years (RCAP 1996b, 140). This recommendation came at a time when Canada was going through a period of major fiscal restraint. Under the deficitreducing Liberals, spending on Aboriginal peoples at least was not reduced, and it is doubtful that any federal government would have done

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more – particularly when one bears in mind that while RCAP was in session, Mulroney’s Progressive Conservatives had been supplanted on the right side of federal politics by the Reform Party, which was not at all supportive of treaty rights or Aboriginal rights. The challenge of moving forward with RCAP’s nation-to-nation approach was that the commissioners recommended that this approach apply to the “60 to 80 historically based nations” in Canada, not to the hundreds of reserve-based “First Nations” created under the Indian Act (RCAP 1996d, 182). Collapsing and melding hundreds of “First Nations” into larger and fewer first nations based on Aboriginal tradition is a project that no federal government would or could undertake and one that Canada’s Aboriginal leadership was not ready to address. Relations: From Hierarchy to Integration Based on Partnership Before RCAP, the relationship between Aboriginal peoples and Canada was largely hierarchical. Despite some moves towards recognition of Aboriginal and treaty rights, and Aboriginal self-government in the 1970s and 80s, Aboriginal peoples and their governments were still generally regarded and treated as subject to the legislative jurisdiction of the federal Parliament and the policies administered by the federal department responsible for policies concerning Aboriginal peoples (formerly Indian Affairs and Northern Development Canada, as of 2010 Aboriginal Affairs and Northern Development Canada). The main aim of federal policy continued to be the assimilation of Aboriginal peoples into the Canadian mainstream. In the years following RCAP, the status and role of Aboriginal peoples in Canada was well on the way to changing to a relationship based on partnership and policies designed to promote integration rather than assimilation. Assimilation means absorbing smaller collectivities into the larger so that the former lose their separate identity. Integration means the smaller societies actively engage, consensually, with the institutions and people of the larger society without losing their identity. Clearly, this change in the relationship between pre-RCAP Canada and post-RCAP Canada cannot be attributed entirely to the commission. Nevertheless, the change is most definitely in the direction that it advocated. Partnership is the essence of the relationship espoused by RCAP. Making and implementing Aboriginal policy through treaties and agreements with Aboriginal peoples rather than having policies imposed from above by federal, provincial, and territorial governments

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is the process RCAP called for in improving the living conditions and life opportunities of Aboriginal people. Closing the gap between the quality of the infrastructure and social services of Aboriginal communities and those available in most other Canadian communities, and improving Aboriginal people’s access to the Canadian education system and economy will no doubt lessen the differences between Aboriginal and non-Aboriginal Canada. But developments such as these that are carried forward through partnerships between Aboriginal governments and other Canadian governments will move the relationship more towards integration than assimilation. The change in the relationship to a less hierarchical, more integrative one, might well have occurred even if there had been no RCAP. By the 1990s, the historical trajectory of the relationship was certainly turning in that direction. But the creation of RCAP, its five-year domination of Aboriginal policymaking, and the legacy of ideas and proposals in its report make it most unlikely that the trajectory will be reversed. In addition, its report provides a kind of recipe book with detailed instructions on virtually all aspects of policy for moving forward on arc. So even though the commission’s hundreds of recommendations were not and, in my view, could not be immediately implemented, they provide a valuable guide to a consensual improvement in the relationship. Conclusion As with the Gordon Commission (see chapter 3) and the Romanow Commission (see chapter 10), it could not be said that RCAP itself brought about a significant change in policy in Canada, although RCAP did give added momentum and direction to a shift in Aboriginal policy that was underway before the commission was established. The essence of the policy change to which RCAP contributed was to stop thinking of “Aboriginal policy” as being based solely on decisions and actions of the government of Canada and to understand it much more as the result of interaction between Aboriginal governments and other governments in Canada. If Canada were structured as RCAP was – on the basis of equality – this change would have proceeded much faster. But in Canada the relationship between Aboriginal peoples and non-Aboriginal Canadians could not be described as being based on equality of power and respect. As an exercise in policy education, so far as the general public is concerned, RCAP, in the short run, was not a success. In the first volume of

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their report, Looking Forward, Looking Back, the RCAP commissioners did investigate, as they were asked to, “the evolution of the relationship among aboriginal peoples (Indian, Inuit and Metis), the Canadian government and Canadian society as a whole” (RCAP 1996c). The commissioners put forward an understanding of the evolution of the relationship as one that had moved from cooperation and equality to displacement and assimilation and was now poised for negotiation and renewal. That shared understanding of the commissioners came to be accepted to a significant degree by the leaders of federal, provincial, and territorial governments, and a large part of the judiciary and of the country’s intellectual and artistic communities. But the general public and the media that shape public opinion did not buy into it. The journalists who covered RCAP did not have the time to study its  voluminous five-volume report. The first volume alone, with its 725 pages, was too much for them. Without spending time on that volume’s account of Aboriginal peoples’ history and their relationship with Canada, the “nation-to-nation” language of the short glossy summary of the report was difficult to comprehend. What they could and did fasten on was the bottom line cost of implementing all of the commission’s recommendations, which, at a time of fiscal restraint, seemed horrendous. While most media coverage was sympathetic to improving the living conditions of Aboriginal peoples, many journalists rejected what they referred to as the commission’s “rights agenda.” The media and the public they “inform” continued to think of Aboriginal policy mainly as a social problem. Despite RCAP, the general public in Canada had not moved much beyond Pierre Trudeau’s 1969 White Paper. Whereas the Aboriginal peoples virtually felt ownership of the inquiry, the other non-Aboriginal public – the great mass of Canadians – was largely indifferent. The commission did not and probably could not orchestrate a conversation or dialogue between these two publics. In this sense RCAP is similar to the Commission on Bilingualism and Biculturalism. That COI also dealt with a relationship fundamental to the nature of our country. While the B and B Commission fostered a much greater appreciation at the elite level of the need for Canada’s national institutions to reflect the English-French dualism, it had relatively little influence on mass opinion in French or English Canada. But, I would argue, that COI served as a vehicle through which a small group of English and French Canadian scholars and writers worked out policies that would in the long run enable their peoples to enjoy a better, more mutually beneficial, and less alienating relationship. In the

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longer run, the ideas put forward by the COI filter through to the broader public and in that way educate the country. That may be the most we can expect from commissions of inquiry like the B and B Commission and RCAP, which tackle great existential questions about past and ­future relationships within deeply divided democratic societies such as Canada. NOTES 1 Calder v. Attorney General of British Columbia (1973), 34 D.L.R. (3rd) 145. 2 R. v. Sparrow, (1990) 1 S.C.R. 1075.

9 Manufacturing Civil Society? How the Krever Inquiry on the Blood System in Canada Shaped Collective Action and Policy Change Michael Orsini

I am the only person in this room who does not represent a special interest. I represent the public interest. Justice Horace Krever

Introduction The Commission of Inquiry on the Blood System in Canada has been held up as a model for how public inquiries can effect meaningful policy change. Indeed, the inquiry has been largely credited with transforming the blood system, divesting the Canadian Red Cross Services of much of its authority to collect and distribute blood and blood products. Moreover, some of its key policy recommendations – that the idea of the precautionary principle should guide decision-making in areas of health-related risk and that all victims of tainted blood be compensated, regardless of when they were infected – were followed, albeit, in the case of the latter, reluctantly by the federal government after many years of political conflict and legal wrangling. Overall, like the Royal Commission on the Status of Women, the Macdonald Commission, the Royal Commission on New Reproductive Technologies, the Walkerton Inquiry, and the Goudge Inquiry (examined in chapters 4, 6, 7, 11, and 12 respectively in this volume), the impact of the Krever Inquiry on policy change was transformative and direct. While it is difficult to assess whether policy change would have occurred without the benefit of the inquiry, it is clear that the facts uncovered during the exhaustively researched inquiry helped to expose the inner workings of a deeply dysfunctional blood system, not to mention

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its role in shining a harsh light on a tragic chapter in Canada’s history of responding to public health crises. More than 1,200 people were infected with HIV-contaminated blood and as much as 20,000 were infected with hepatitis C, a virus that until the 1990s was unknown to most Canadians. During the 1980s, the period during which many were infected with HIV-tainted blood, AIDS was a virtual death sentence. Little was available in the way of treatment, a far cry from today’s world of highly active antiretroviral therapy (HAART), which has dramatically improved the life expectancy of many people living with HIV, especially those in the developed world. By contrast, many people who acquired hepatitis C saw their health deteriorate rapidly as a result of extensive liver disease. Asking, however, whether the inquiry resulted in observable policy change does not exhaust the range of policy-related outcomes demonstrated by this case. At the level of ideas, the inquiry introduced the notion of no-fault compensation for blood-associated injury, which has implications for how we address management of other (real or potential) health risks and especially iatrogenic illnesses (illnesses caused by the medical system or in the course of medical treatment). And while the institutional changes were far-reaching, especially given the decision to divest the Canadian Red Cross of much of its main activities, a distinguishing outcome of the inquiry – and one that sets it apart from a number of other notable public inquiries – is the role it played in structuring interests and shaping the identities of established and fledgling policy actors. The title of this chapter, then, is deliberately provocative: the Krever Inquiry did not, of course, “manufacture” civil society where none existed. It did, however, play a defining role in catapulting haemophiliacs onto the political stage. Before the inquiry, haemophiliacs were organized in support networks but could hardly be described as seasoned political actors. During its first thirty-five years of existence, the Canadian Haemophilia Society (CHS) “politely lobbied” for awareness of haemophilia and for improvements in medical care, but rarely denounced medical or government officials: “With no history of activism, and few resources in terms of money or scientific personnel, the CHS was at best a tame advocate” (Picard 1995, 162). As the number of haemophiliacs began to rise, the CHS became unable to shield itself from entering the public arena of politics. The organization’s initial foray into politics focused on pushing for financial compensation for the victims of tainted blood. In addition to politicizing an otherwise tame consumer group uncomfortable in the media spotlight, the inquiry gave

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impetus to a new set of actors (people with hepatitis C) who became strong advocates for policy change well after Krever delivered his muchanticipated three-volume final report in 1997. The first part of this chapter situates the Krever Inquiry within Canada’s public inquiries tradition and provides a short overview of key moments in the saga of tainted blood. In the second section, I examine the inquiry’s ideational dimensions, focusing on how the inquiry contributed to a debate about the appropriate role of the state in mediating risk through the adoption of the precautionary principle as well as underscoring the vital role of health system governance. The third section examines the institutional features of the inquiry (federalism and regulatory authority), and how some of the rules that governed the inquiry came under fire. The final and most substantive section discusses how the inquiry shaped policy change and collective action in the area of tainted blood, which had a feedback effect on how the inquiry itself and governments fashioned their responses to what has been called Canada’s most significant public health disaster. To re-emphasize the role of ideas and actors outlined in chapter 2 and paraphrase Brown (2000, 2), I view the Krever Inquiry as being engaged in “sensemaking,” a process of “interpretation and meaning production whereby individuals and groups reflect on and interpret phenomena and produce intersubjective accounts.” Such an understanding of public inquiries challenges conventional accounts of inquiries as quasi-­ judicial or evidence-based attempts to “get to the bottom” of things, as investigative inquiries are often framed. Treating inquiries as sensemaking processes requires us to foreground the importance of narrative and storytelling, and how individuals and groups engaged in these processes make sense of events (Brown 2000) and engage in policy change. It also addresses the editors’ interest in thinking about relations as both the formal, institutionalized relationships as well as the informal ones that can have a structuring role on the COI. The Krever Inquiry, and I include here those who participated in the inquiry as witnesses and legal advocates, as well as inquiry staff and Justice Horace Krever, played a key role in framing struggles over recognition and redistribution. This type of sensemaking is not unidi­rectional, of course. While the inquiry problematized the notion of victimhood, the organizations that pressed their recognition claims revealed, as well, that there were deep divisions over who was entitled to be called a “victim,” and that the official tainted-blood storyline focused solely on victims infected with HIV. Although it would be incorrect to suggest that none of

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these issues was present before the start of the inquiry, it was only during the inquiry that these ideational and representational issues crystallized. As Kriesi points out, understanding the role of such moments or events is central to understanding “unsettled lives.” While “settled lives” “are usually governed by common sense – a set of assumptions that has become so unself-conscious as to seem a natural, transparent, undeniable part of the structure of the world … [when] daily life becomes disrupted in ways unpredicted by their accumulated knowledgeability, people will require new interpretations, which may be provided by ideologies, highly articulated self-conscious belief and ritual systems aspiring to offer a unified answer to problems of social action” (Kriesi 1988, 363). Context: The Krever Commission and Canada’s Public Inquiries Tradition As Jenson reminded us two decades ago, public inquiries “have not simply listened to the expression of interests by groups: they have also contributed to the way that we subsequently conceptualized our interests and collective identities” (Jenson 1994, 45). To varying degrees, commissions of inquiry have given previously marginalized groups and individuals a platform to have their voices heard, to render their own experiential knowledge “narratable,” a story worthy of being told. Put another way, Salter (2007) explains that at the heart of the public inquiry process is a struggle to define what constitutes “the public” and the degree to which the inquiry should go in locating this elusive public and, by extension, the “public interest.” It is in the name of the public interest that policy change is promoted. The Krever Inquiry illustrates Salter’s point noted in chapter 1, that the neat separation between “fact-finding” and “policymaking” COIs rarely occurs in practice. That being said, I assert that the inquiry itself did not explicitly recognize the fuzziness of these boundaries, and as a result was unable to reconcile whether it was a “policy-oriented” inquiry concerned with public input or a “quasi-judicial” inquiry intent on uncovering the events that led to the tainted blood scandal. The inquiry’s unclear and sometimes contradictory mandate compounded and, in some instances, created bitter political strife between and among civil society organizations, and complicated representational strategies. Krever himself captured the dilemma when he commented, “I am the only person in this room who does not represent a special interest. I

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represent the public interest” (Coutts 1994). While it sought, at least unofficially, to recognize the “forgotten victims” of the tainted blood scandal, the commission was struck to probe misconduct. The inquiry began its public hearings on 14 February 1994, Valentine’s Day, chaired by Justice Horace Krever, who was co-chair of the Royal Society of Canada when it recommended compensation to victims of HIV-contaminated blood in 1987. Although the House of Commons Subcommittee did officially call for the creation of an inquiry in May 1993, activists associated with the haemophilia community, in particular, stressed that they were instrumental, behind the scenes, in winning support for a public inquiry (Orsini 2002a, 2002b): “We fed the committee members questions. We became specialists in feeding the information” (personal interview with Durhane Wong-Rieger, Ottawa, 6 July 1999). The inquiry held ten months of public hearings across the country, during which 474 expert and lay witnesses presented testimony, some of which was highly charged and deeply emotional. Approximately half of the witnesses who testified during the ten months reserved for testimony were victims. The inquiry’s detailed final report, which was released more than two years behind schedule, issued stinging criticism of many individuals responsible for overseeing the blood system. In addition, Krever’s unequivocal support for extending compensation to all tainted blood victims fuelled the acrimonious battles that later took shape over compensation for hepatitis C infection, the “second epidemic.” The Krever Commission stands out as an inquiry that was concerned with both uncovering facts and providing a public forum for the personal and painful narratives of individuals infected with tainted blood. The commission’s organizational and procedural arrangements reflected both its quasi-judicial and representational objectives. Krever followed through on a publicly stated promise that anyone who was interested in testifying before the inquiry would have the opportunity to do so. In addition, however, it became clear that victims’ groups also required legal representation if they were to take full advantage of their presence at the inquiry. The newly formed Hepatitis C Society of Canada was granted intervener status at the inquiry but was refused funding for legal counsel. Justice Krever himself recognized the importance of representation when he chose to include the voices of victims in the inquiry process. The Krever Commission had an official and an unofficial mandate. Officially, it was concerned with uncovering the facts surrounding the blood scandal. Unofficially, it provided an outlet for the many Canadians

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who claimed they were “poisoned” by the blood system. Krever himself used somewhat sterile language to describe this role, referring to “the roles, views, and ideas of relevant interest groups.” The commission’s organizational and procedural arrangements reflected this fusing of its quasi-judicial and representational objectives. The inquiry began with organizational hearings in November 1993 to determine which parties would be granted standing. In addition to the Red Cross, the Canadian Blood Agency, and federal and provincial governments, Krever granted standing to nine organizations representing victims of tainted blood. The commission then proceeded with its public hearings, which were divided into three main phases. The first phase, from February to December 1994, involved testimony from 315 witnesses across the country. Among the witnesses were victims, representatives of AIDS-related and com­ munity organizations, employees of local Red Cross blood centres, and ­provincial government officials. Krever was not specific about what he intended to glean from victim testimony, except to note that he made a commitment to hear from any tainted-blood victim “who wished to relate their experiences to me” (COIBSC 1997, 7). During the second phase, from March to November 1995, the commission turned to issues of broader national attention concerning the relationships between and among the key participants in the blood system. Eighty-five witnesses appeared before the commission during this phase. The third phase, between November and December 1995, consisted of round-table discussions on issues affecting the current blood system. The last, unofficial phase of the inquiry process, and perhaps the most controversial, involved the commissioner’s obligation, under section 13 of the Inquiries Act, to notify any individual who might be cited in the report for misconduct. Krever identified ninety-five individuals, corporations, and governments who might be singled out and who had the right to appear before the inquiry to respond to the allegations. Before this final phase of hearings could begin, however, a number of individuals and institutions named by Krever asked the Federal Court to quash the notices and prevent the inquiry from including in the findings in its final report. After more than eighteen months of legal wrangling, which took the case up to the Supreme Court of Canada, Krever was permitted to name responsible individuals. But, as Picard points out, the victory was bittersweet for tainted-blood victims. In the time it took to settle the case, more than three hundred tainted blood victims died, decreasing the financial burden on governments vis-à-vis compensation and/or possible lawsuits (Picard 1995).

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Ideas: Does Our “Storefront of Ideas” Need More Furniture? Public inquiries are a seemingly natural place for examining the policy influence of new ideas. Indeed, as Berger noted, public inquiries “have brought new ideas into the public consciousness. They have expanded the vocabulary of politics, education and social science. They have added to the furniture that we now expect to find in Canada’s storefront of ideas” (Berger 2003, 14). The Krever Inquiry was no exception, although the characterization of an inquiry’s capacity to expand “the vocabulary of politics” might exaggerate the transformative potential of public inquiries. In some cases, this can mask important but decidedly corrosive features of inquiries and their ideational struggles, not to mention the political jousting with elected officials that can frustrate inquiries from fulfilling their mandate. The Habermasian ideal of initiating a process of deliberation that enriches the discussion of complex policy issues can crash into the brick wall of realpolitik. While inquiries might hope to open a more sustained dialogue about broader policy issues, a dialogical space that is not always afforded by the “real world” of policymaking, they are often hemmed in by the terms of reference that set up the inquiry in the first place, and by a media spotlight that is more interested in communicating conflict or disagreement than policy complexity. The terms of reference set out for the inquiry seemed fairly uncontroversial, albeit somewhat ambitious. Krever was asked: to review and report on the mandate, organization, management, operations, financing and regulation of all activities of the blood system in Canada, including •

the events surrounding the contamination of the blood system in Canada in the early 1980s, by examining, without limiting the generality of the inquiry; • the organization and effectiveness of past and current systems ­designed to supply blood and blood products in Canada; • the roles, views, and ideas of relevant interest groups; and • the structures and experiences of other countries, especially those with comparable federal systems (COIBSC 1997, 5). As if anticipating the series of controversies that would plague the inquiry and its aftermath, Krever laid out on the first day of public hearings in November 1993 how he viewed the inquiry:

The Krever Inquiry on the Blood System in Canada  179 It is not and it will not be a witch hunt. It is not concerned with criminal or civil liability. I shall make findings of fact. It will be for others, not for the commission, to decide what actions if any are warranted by those findings … As I interpret the terms of reference, the focus of the Inquiry is to determine whether Canada’s blood supply is as safe as it could be and whether the blood system is sound enough that no future tragedy will occur. For those purposes it is essential to determine what caused or contributed to the contamination of the blood system in Canada in the early 1980s. We intend to get to the bottom of that issue, let there be no mistake about that. (COIBSC 1997, 8–9)

Ideas Two influential concepts from the Krever Commission contributed to the reformed blood system’s success: the adoption of precautionary measures and the creation of a governance system with clearer roles and responsibilities, including the separation of funding from decisionmaking concerning safety (Wilson 2007). The dominant ideas in the area of blood safety centred on a collaborative model of federalism in which federal and provincial governments along with a key civil society actor – the Canadian Red Cross – brokered arrangements to supply Canadians with access to safe blood and blood products. Unfortunately, this “collaborative model” resulted in buck passing and a lack of clarity on lines of accountability, as well as facilitating a series of decisions that cost the lives of thousands. At the level of ideas, the inquiry opened up significant policy space – albeit contentious – for a discussion of how the precautionary principle might apply to the real world of policymaking. Following the inquiry, the blood system faced its major infectious threat in the form of variant Creutzfeldt-Jakob disease (vCJD), which was first identified in 1996 in the United Kingdom and linked to individuals who consumed beef from cows with bovine spongiform encephalopathy (BSE). In the U.K., officials were roundly condemned for waiting to implement precautionary measures before the scientific evidence was conclusive. Canada took a bold step in deciding to defer donations from individuals who had travelled to the United Kingdom for six months (later reduced to three months) between 1980 and 1996 on the fears that this infectious disease could be transfusion-transmitted (Wilson et al. 2003). The precautionary principle, in this case, is not without its negative externalities, specifically the possibility that applying the principle to

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protect the safety of the system might actually jeopardize that same system if it creates a blood shortage. As Wilson et al. explain, the donor deferral decision then “reveals the ‘double-edged’ implications of applying the precautionary principle to health issues” (Wilson et al. 2003, 92). While the policy recommendation regarding the application of the precautionary principle was immediately applied, albeit with the proviso that the principle is contentious, the policy recommendation on the creation of a no-fault compensation plan was not implemented. As one letter writer remarked to the Canadian Medical Association Journal, this issue was “close to his (Krever’s) heart.” This recommendation, he explains, was “part and parcel of the precautionary principle because it would have served to balance the pressures of extreme risk aversion (by regulatory bodies and health care agencies, among others) with the need to move ahead with new treatments or to respond to unanticipated challenges. It put the dignity of patients first” (Schipper 2008, 731). I do not mean to suggest here that the inquiry itself resolved the issue once and for all of how to intervene in cases where the evidence is ­inconclusive or not compelling; rather it introduced in very concrete terms a live example of what happens when governments decide not to act, and base their inaction on the apparent lack of evidence.1 In a letter to the RCMP, which picked up where the Krever Inquiry left off, the Canadian Haemophilia Society identified four main areas of failure: •

The decision not to introduce surrogate testing for the hepatitis C virus between 1986 and 1990. In his report, Judge Krever said that failure led to the infection of 28,600 Canadians, and that 85 per cent of those cases were preventable. • Delays in introducing testing for HIV in the blood supply. A test was available on March 2, 1985, but universal testing was not in place until November 1 of that year. The report concluded that at least 133 people contracted the AIDS virus in that period. • Delays in the introduction of concentrates that were heat-treated. A decision was made in November 1984 to switch to the safer product, but it was not completed until July 1985. Judge Krever concluded that the inventory of unheated products was deliberately exhausted and, had blood system officials acted promptly, “some of the haemophiliacs would have avoided being infected.” • Continued use of heat-treated products as late as 1987, after this method had been proved ineffective (Picard 1995, 250–1).

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What was particularly galling for some was the suggestion that there existed a “Schindler’s List” of sorts, as it came to be known in the haemophilia community, of individuals who would be first in line to receive the heat-treated concentrate (those who had never received untreated blood products). Next in line were haemophiliacs who had been treated least with these products or who had received only cryoprecipitate (Gilmore and Somerville 1999). As it turns out, this list was not needed, as less than 10 per cent of the 15 million units of blood and blood products were distributed; the Canadian Red Cross Society (CRCS) opted instead to use its stocks of untreated material (Gilmore and Somerville 1999). Institutions The institutional features of our federal system are critical in understanding the roots of the blood scandal as well as its aftermath. Trebilcock, Howse, and Daniels point to federalism as one of the reasons why the blood system failed Canadians in the first place. While both the whole blood sector and the blood products sectors appeared to be centralized on paper, in practice they were “decentralized and diffuse due to the practice of cooperative federalism and entanglement of provincial governments through their funding role” (Trebilcock, Howse, and Daniels 1996, 1428). The blood system itself, prior to the overhaul, consisted of three main players: the CRCS, the Canadian Blood Agency (previously the Canadian Blood Committee), and the Health Protection Branch of Health Canada. Since 1947, the CRCS had retained a monopoly over the collection and distribution of whole blood in Canada. It operated the blood supply system without assistance from federal or provincial governments, collecting blood from voluntary donors and providing it to hospitals and consumers free of charge. But with demand increasing for its services, the CRCS realized it needed financial support. Governments agreed, and before long, public support for the CRCS’s two programs, the blood transfusion service and blood donor recruitment, was considerable. By the mid-1970s, the provincial and federal governments collectively covered 100 per cent of the costs of the first program, and about 80 per cent of the costs for the second (COIBSC 1997, 47). In the 1980s, the CRCS’s role expanded with its move towards the distribution of fractionated blood products. Reflecting nationalist sentiment that was growing in Canada vis-à-vis blood, the CRCS began a program to expand Canada’s capacity to turn fresh-frozen plasma into

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concentrates through a process called fractionation. It soon became apparent, however, that Canada could not internally meet the demand for plasma and plasma derivatives, which led to the CRCS’s decision to import plasma from the United States. This would later prove a deadly move, since the plasma imported from the United States came from paid blood donors, many of whom were considered high risk for infection. Canada’s voluntary blood collection system, it seemed, was anything but voluntary. Up until 1991, the Canadian Blood Committee administered the fun­ ding of the Canadian blood program on behalf of the provinces and territories. As Krever notes in his final report, it suffered from a lack of independence and had no corporate existence of its own: “It could not enter into contracts with the Red Cross or other suppliers, borrow money, or make decisions about matters involving substantial amounts of money that would bind the governments it represented … As a result, major decisions required the approval of every major provincial and territorial government before they could be carried out” (COIBSC 1997, 1004). In some important respects the lines of authority between the CBA and the CRCS were blurred, despite the fact that the CBA had ultimate control over approving any budget items of the CRCS. In 1991, the federal government replaced the CBC with the Canadian Blood Agency. Created as a “federal not-for-profit corporation with the power to enter contracts and borrow money,” the new agency was set up to overcome some of the problems that had plagued the CBC. In its interim report issued in 1995, the commission of inquiry had already identified at least four main problems in the governance of the blood system: the delineation of roles and responsibilities, the authority of the Canadian Blood Agency, the lack of consensus over guiding principles, and inadequacies in the regulatory framework. First, it was noted that there is no formal agreement or legislation pertaining to the “respective functions, authority, and accountability” of the parties involved in the supply of blood and blood products. The CRCS, for one, questioned the authority of the CBA, which held the purse strings and the power to withdraw funding to the CRCS if it felt the organization was being non-compliant. For its part, the CBA contended that its role was not limited to “financial stewardship,” but extended “to both direction and coordination of the blood system” (COIBSC 1995, 9). Second, there was a lack of clarity regarding the authority of the Canadian Blood Agency. As the CBA did not have a written contract with the CRCS, the

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CRCS did not accept the leadership of the CBA, nor did it believe it was required to follow the CBA’s directives. Third, there was profound disagreement over some of the principles adopted by the CBA at a meeting of ministers of health in 1989, including the idea that Canada should become self-sufficient in blood and plasma collections. The CRCS contended that this principle should be extended to include not only the collection of sufficient plasma for Canadian needs, but the manufacture of fractionated products from that plasma in Canada, as well. The CBA maintained, conversely, that national self-sufficiency was possible without having a national processing and manufacturing capacity. The CRCS and CBA also sparred on the principles of safety versus cost effectiveness and efficiency. The CRCS questioned the wisdom of always balancing cost against safety, arguing that sound financial management may ultimately jeopardize the safety of the blood system. Finally, the committee pointed to inadequacies in the framework that regulates blood and blood products. In particular, it found that there were no regulations regarding blood collection and the processing of blood components. In addition to the institutional features of the blood system, the inquiry itself was plagued by internal strife, not unlike the Macdonald Commission and the Royal Commission on New Reproductive Tech­ nologies (see chapters 6 and 7 in this volume), but unlike the other COIs in this study, also by accusations of political interference. Krever was under pressure from the federal government to deliver his final report sooner rather than later; indeed, reports indicate that the minister of health at the time, David Dingwall, threatened to quash the inquiry if it continued to delay the delivery of its final report. Dingwall angrily dismissed this allegation in a personal interview as “absolute horseshit” (personal interview with author, Ottawa, 11 August 1999). Steadfast in his refusal to be bullied by government, Justice Krever issued his final report in November 1997, almost three years after its expected date of release and after much speculation about how far the inquiry would step outside of its mandate to get to the bottom of the scandal. As D’Ombrain explains (1997, 103), it is a common mistake for governments to “set up an inquiry to reduce immediate political pressure with the delusion that the inquiry can be controlled and can provide a report quickly, the Krever inquiry being a classic example.” In the end, while it left the Liberal government red-faced, the three-volume report garnered praise from many victims’ groups, some of whom initially

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feared that it would be little more than a “whitewash.” As one activist said, “He [Krever] kept calling it ‘my inquiry.’ We were quite afraid. We were truly astonished [at the final report]. It was as strong as we could have wished for” (personal interview with Durhane Wong-Rieger, Ottawa, 6 July 1999). Not everyone was pleased with the report, however. Justice Krever was publicly criticized for failing in his final report to directly point fingers at individuals and institutions, this despite the fact that he fought and won the right to make allegations of misconduct. In its unanimous decision, the Supreme Court of Canada warned that he must be careful in his wording so as not to impute any criminal culpability or civil liability to those named. The reason for this restriction is that the rules of evidence at an inquiry differ from those presented in a court of law. Inquiry witnesses, for instance, can choose not to incriminate themselves by refusing to testify, and their counsels do not have the right to cross-examine witnesses thoroughly. Therefore, allowing Krever to suggest criminal actions or civil actions would have breached the Charter right to a fair trial. Actors and Structures of Representation In addition to the focus here on the actors included and excluded in the COI and the policy change process, I draw on Nancy Fraser’s “redistribution-recognition” dilemma to illustrate some of the representational tensions and realignments that occurred throughout and after the commission’s hearings. Fraser uses the phrase to denote two analytically distinct paradigms of justice, with redistribution being a remedy for socioeconomic injustice, and recognition a remedy for cultural or symbolic injustice. The separation of redistribution and recognition does not imply, however, that each can or should always be viewed as distinct. As Fraser herself acknowledges, “In the real world, of course, culture and political economy are always imbricated with one another; and virtually every struggle against injustice, when properly understood, implies demands for both recognition and redistribution. Nevertheless, for heuristic purposes, analytical distinctions are indispensable. Only by abstracting from the complexities of the world can we devise a conceptual schema that can illuminate it” (Fraser 1995, 70). According to Fraser, “The politics of recognition and the politics of redistribution appear to have mutually contradictory aims. Whereas the first tends to promote group differentiation, the second tends to undermine it. The two kinds of claims thus stand in tension with each other;

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they can interfere with, or even work against, one another” (Fraser 1995, 74). As outlined in the previous section, during the hearings, the role of ideas and recognition of experiential knowledge clashed with matters of compensation for victims (redistribution). This was exacerbated by the decision to compensate haemophiliacs who contracted HIV but shut out countless others who had contracted hepatitis C, which was poorly understood in the public. The recognition-redistribution dilemma turns on the question of specificity. Redistribution claims “call for abolishing economic arrangements that underpin group specificity,” while recognition claims “often take the form of calling attention to, if not performatively creating, the putative specificity of some groups, and then affirming the value of that specificity” (Fraser 1995, 70). People who are subject to both forms of injustice must, paradoxically, both claim and deny their specificity. While recognizing the difficulty in reconciling these claims, Fraser offers two approaches to “finesse” the redistribution-recognition dilemma. The first includes affirmative remedies, which correct “inequitable outcomes of  social arrangements without disturbing the underlying framework that  generates them” (83). The second involves transformative remedies, which “are aimed at correcting inequitable outcomes precisely by restructuring the underlying generative framework” (83). For Fraser, a resolution would involve the transformation of the political economy combined with a “deep restructuring” of relations of recognition. The parallels to Hall’s three orders of policy change outlined in chapter 2 are notable here. First, we turn to the issue of redistribution. In the initial stages, a great deal of activist energy was devoted exclusively to fighting for compensation. What unfolded, however, revealed that compensation claims were inextricably tied to the issue of recognition or non-recognition. The victims of the tainted blood scandal who contracted hepatitis C, deemed a poor cousin to HIV, found that their suffering could not parallel that of the victims who contracted HIV. Fraser might characterize this as a cultural or symbolic form of injustice. As she notes, quoting Charles Taylor, “Nonrecognition or misrecognition … can be a form of oppression, imprisoning someone in a false, distorted, reduced mode of being. Beyond simple lack of respect, it can inflict a grievous wound, saddling people with crippling self-hatred. Due recognition is not just a courtesy, but a vital human need” (Fraser 1995, 71). While a greater consensus had emerged on the issue of compensating people with hepatitis C, the federal government was reluctant to include

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those who were secondarily infected (e.g., children who were infected by their mothers, themselves infected by tainted blood). For instance, following assurances to a young infected girl that the government would not turn its back on her, the minister of health had to apologize later for making such a promise, noting that he was unaware that the girl was secondarily infected. While the matter of compensation tackled the issue of redistribution, it did little to satisfy the increasingly a­ crimonious battles over representation and recognition. The groups granted standing at the Krever Inquiry included the Canadian Haemophilia Society, the Canadian AIDS Society, Canadian Haemophiliacs Infected with HIV, HIV-T Group (Blood Transfused), the Hepatitis C Group of Transfusion Recipients and Haemophiliacs, the Hepatitis C Society of Canada, and the Committee of HIV Affected and Transmitted. A number of other stakeholders, including provincial governments, the Red Cross, and pharmaceutical firms, also appeared before the inquiry. While questions of representation are multifaceted, they are grouped here along three lines: the representation of members by their leaders, organization to organization, and outside representation (public ­identity). Regarding the first, representation by leaders, for instance, it is  worth noting that the primary spokesperson for the Canadian Haemophilia Society, Durhane Wong-Rieger, was not a haemophiliac herself, nor the relative of one. She was hired as a consultant in 1990 to help the CHS board, which was being torn apart by the stress of dealing with the crisis. Regarding the second, bitter political infighting ensued between the CHS and the Canadian AIDS Society (CAS), a national body representing several AIDS organizations. As the executive director of the CAS explained, the groups clashed over fundamental philosophical issues, namely regarding the role of the state. “They were saying ‘We’re [haemophiliacs are] innocent victims, we don’t deserve this.’ The whole compensation issue comes from their idea that the state should protect them. We have different expectations of what the state should do” (personal interview with Russell Armstrong, 28 May 1997). Rather than allow bureaucrats to make important decisions regarding the lives of people with HIV/AIDS, Armstrong said that AIDS organizations have struggled to take ownership of the illness. Finally, outside representation, or public identity, captures “the influences that the external public have on the way social movement adherents think about themselves” (Johnston, Laraña, and Gusfield 1994, 18). This is important in the context of tainted blood, as their representatives waded into an AIDS discourse that delineates innocent and guilty

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victims. For instance, haemophiliacs have been cast as the quintessential “innocent” victims, the unwitting victims of a “normal” lifestyle. This contrasts sharply with gay men or IV drug users, who have been blamed for pursuing an “unhealthy” or “risky” lifestyle. This is only half of the story, however. Haemophiliacs also suffer the stigma that is commonly experienced by other people with AIDS. In one well-known case, Ryan White’s attempts to enter the Indiana school system were met with boycotts by his schoolmates’ parents, many of whom feared their children might contract HIV from him. White eventually became a national symbol and the public, heterosexual face of HIV in North America. White’s experience dispels any notion that there are “good” and “bad” ways to contract HIV. Of the medical response to his condition, White said, “They [the doctors] marked my … They marked ‘fag’” (Goldstein 1990, 15). In an apparent slip, one newspaper report even identified White as a “homophiliac,” conflating haemophiliac and homosexual (Gilman 1993). Activists associated with the haemophilia movement agreed that an ­internalized homophobia among haemophiliacs – they were fearful of a possible connection between homosexuality and haemophilia – prevented the Canadian Hemophilia Society from responding swiftly to the threat of AIDS within their community. Relations As regards the editors’ interest in the less-studied role of relations and policy change, it is apparent that some tainted blood victims benefited from a privileged relationship with certain political actors, as well as the media, which were eager for a sympathetic story of an average family caught in the crosshairs of this public health tragedy. For instance, Janet Conners, then a little-known wife of a local haemophiliac in Nova Scotia, began pressuring the province’s health minister to extend compensation. After several personal meetings with Janet and her husband, Randy, Minister George Moody promised them that he would try his best. Moody’s appeals to his provincial and territorial counterparts to reopen the compensation issue, however, went unheeded. By April 1992, Moody agreed the province would go it alone. This, coupled with a report on the tainted blood tragedy by the House of Commons Subcommittee on Health Issues, eventually pushed the provinces and territories to reverse their original decision not to consider compensation. On 15 September 1993, a day before the inquiry was formally announced, details were made public of the Multi-Provincial-Territorial

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Assistance Program for HIV victims. Victims infected with HIV between 1978 and 1989 would receive a $22,000 bonus for signing on to the plan, plus $30,000 annually for life. For some time, the Liberal government had steadfastly defended its stance to compensate only those victims who were directly infected by the blood supply system after 1985, the year in which blood testing for HIV and hepatitis C became widely available. This stance had been widely criticized by a broad range of political actors, including the likes of Ontario Premier Mike Harris and Opposition Leader Preston Manning. Provincial governments have also voiced their concern and opposition to the Liberal policy, calling for the federal government to show more compassion for all victims of hepatitis C and HIV. Politically, the “compensation for all” banner taken up by the provinces set the stage for yet another round of provincial-federal jurisdictional squabbles, in this case in the area of health policy. In addition, the debate about “compensation for all” was interesting in how it reconfigured the redistribution-recognition dilemma. As the “compensation for all” proponents called for the legal and moral recognition of all individuals who contracted hepatitis C, they, perhaps unwittingly, excluded other groups as victims deserving of government support. Conversely, it was suggested that the Liberal government’s opposition to extending compensation to all victims was an attempt to prevent the emergence of a new hierarchy of victimhood, which would distinguish “true” hepatitis C sufferers – those “officially” infected – from those who exhibit the symptoms of hepatitis C but are not officially infected with the disease. Ultimately, the government’s endorsement of a tailored compensation package, as opposed to “compensation for all,” shielded it, at least temporarily, from grappling with some of the vexing questions surrounding government accountability vis-à-vis iatrogenic illness. Ultimately, the Krever Inquiry may have provided the impetus for the federal government to redefine its role in and commitment to protecting public health. By the beginning of 1998, federal and provincial health ministers met again to consider the hepatitis C compensation issue. In what some saw as a minor breakthrough, the government announced in March 1998 that it and the provinces and territories had agreed to a $1.1 billion compensation plan, but that it would be restricted to victims infected between 1986 and 1990. The decision to shut out victims not infected during this time period launched the hepatitis C community’s most prolonged flurry of protest. After some initial difficulty in rousing opposition political

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parties, victims staged another protest on Parliament Hill, with representatives of all federal opposition parties in tow. Secure in their belief that they had managed to win the support of opposition parties and enough Liberal Party dissidents, they called for a free vote in the House of Commons on the compensation package. Prime Minister Jean Chrétien rejected the call for a free vote and warned the party faithful that a vote against the limited package could have negative repercussions on those party members who decided to vote against the party. One week later, in a dramatic vote, the House of Commons rejected the Reform Party–led motion on extending compensation, 155 for, 140 against. A tearful Liberal MP Carolyn Bennett, a former board member of the Hepatitis C Society of Canada and medical doctor, voted against the motion and had to face accusations that she had “betrayed” hepatitis C victims. Finally, while the inquiry’s final report attempted to settle the dilemma through its call for no-fault compensation for all victims, ultimately its failure or inability to point fingers and raise serious issues of government accountability for wrongdoing unleashed a string of lawsuits and legal activity. The race for recognition moved from the Krever Inquiry to a court of law, where new, protracted conflicts emerged. The relational strategies used by the various actors are also important but it is almost impossible to make sweeping generalizations about social movement organizations, since this balancing act is accommodated to meet different needs at different times. For some organizations, it may be more important to articulate their difference via confrontational tactics (such as civil disobedience); for others, it may be more important, at least initially, to compromise their identity in order to reinforce or assert that identity in the long term. This tug of war is evident in a cursory examination of the CHS’s efforts, which were largely non-­confrontational. Their explicit support for and participation in the inquiry is one example of this, since there were some calls to denounce the inquiry and ­focus on individual or class-action suits to win compensation for tainted-blood victims. Of course, it is foolhardy to suggest that these strategies are mutually exclusive, since the inquiry process overlapped with the launching of lawsuits on behalf of victims. Notwithstanding the external pressures of the political system, COIs suffer from internal strife, as well. As Phillips notes (1992, 271), they must negotiate the “dilemma of optimization, that is, balancing pragmatic compromises and principled commitments, choosing between conciliatory and confrontational tactics, and acting as interest representatives rather than identity reinforcers.” Krever himself demonstrated publicly,

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at least, that he had the courage of his convictions and that he would not be intimidated by the government of the day, or by the stakeholders who cycled through the hearings. It was clear that some of those key players, including the Canadian Red Cross, were growing tired of the incessant questioning. Lest he be accused of picking favourites, Krever was not afraid to rebuke some of the other stakeholders with whom he presumably sympathized, such as the Canadian Haemophilia Society. It occurred after the organization released a study on hepatitis C conducted by the Red Cross that the group had requested through a federal access-to-­ information request. “I started to read it and said, ‘Oh my God!’ It suddenly became clear that we had a second epidemic.” The CHS’s decision to release the results of the study to selected media outlets, including the Globe and Mail and CBC Radio, appeared to incense Krever, who later castigated the group publicly for trying to subvert the inquiry process. Conclusion The policy changes that might be attributed to the Krever Inquiry were transformative and direct, particularly from an institutional change perspective. It is certainly not every day that a major charitable institution such as the Canadian Red Cross is virtually gutted and removed from any responsibilities associated with the collection and distribution of blood and blood products. As one observer noted in an interview, confronting an organization that was associated with altruism and good will was a significant challenge: “The Red Cross was like Santa Claus. And it was like trying to prove that Santa Claus was a paedophile” (Dawna Ring, interview with author, 8 August 2001). One should be careful, however, about overstating the degree of policy change and significance of the inquiry for Canadians, as there were many victims of tainted blood who died before the inquiry wrapped up its hearings and before the political jockeying that would ultimately culminate in compensation for all victims. To make matters worse, several group leaders and observers remarked that their inability to secure criminal prosecutions for those individuals who had a hand in the contaminated blood fiasco made the compensation victory a hollow one. At the level of ideas, the inquiry introduced the idea of no-fault compensation for health-related risks, an idea whose time has yet to come, despite Krever’s impassioned, strenuous pleas for its adoption. In ad­ dition, it introduced to the health and medical field the notion of the precautionary principle, which had been first introduced in the environmental realm.

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At the level of actors, I framed my discussion in terms of Nancy Fraser’s recognition-redistribution dilemma, suggesting that the inquiry influenced how these struggles played out during and after the inquiry. To be clear, I am not suggesting that the inquiry is solely to blame for this dilemma; rather I am more concerned with opening a space for thinking about public inquiries as important venues for the articulation of interests and identities, however provisional and contested these identities and interests might be. Focusing solely on the policy impact of the inquiry has the unfortunate tendency of obscuring these important representational roles that can be performed, albeit imperfectly, by COIs supposedly charged with fact-finding. If one accepts Fraser’s distinction of affirmative and transformative remedies, then the remedies offered by Krever in his final report may be typified as affirmative. The fact that he did not point fingers at individuals and organizations, according to some, drained the power of his otherwise comprehensive account.2 A transformative remedy would have involved a deep restructuring of relations between the state and its citizenry. The hepatitis C matter raises more troubling issues regarding compensation in general, and about the nature of government accountability for “medical misadventure.” In this sense, it may be argued that while Krever’s remedies were affirmative, the effect of the Krever Inquiry on the Canadian political landscape is potentially transformative, in that it calls into question the role of the state in adjudicating matters of risk. This means that while there is a grudging acceptance that policy decision-making occurs in an environment marked by uncertainty, it does not shield governments from making the tough decisions in the first place. The Krever Inquiry’s unsuccessful attempts to fulfil both its investigative and representational tasks contributed to the formation and organization of group identities as well as the divisive discourse that ensued. Essentially, the inquiry suffered from an “identity crisis” of its own, unable to decide whether it was a policy-oriented inquiry concerned with public input or a quasi-judicial inquiry intent on uncovering the events that led to the tainted blood scandal. In practical terms, the inquiry’s plight was embedded in the fact-finding vs policy-­formulating inquiries dichotomy, which prevented it from developing a mode of inquiry most suitable for its mandate. This identity crisis is directly linked to its inability to reconcile Fraser’s redistribution-recognition dilemma. Although it sought to redress the ­redistributive questions that emerged, the inquiry was ill prepared to deal with the recognition end of the dilemma. While recognizing the

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importance of representation, and reserving space for victims to recount their painful narratives, it did not, as Fraser would argue, transform group identities. Rather, it affirmed or encouraged actor differentiation. For instance, the discourse surrounding the issue of compensation distinguished the deserving from the undeserving, and pitted haemophiliacs who contracted HIV against others who contracted hepatitis C. The victims of tainted blood, many of whom were previously united under the banner of the Canadian Haemophilia Society, eventually broke off from the organization to form their own groups and to gain due recognition. At the institutional level, one would be hard pressed to neglect the federal system of government as a key defining structure in understanding the blood system in all of its complexity. At the heart of Krever’s intervention was an insistence that all of the actors implicated in the blood system address underlying governance issues and resist the tendency to continue to be mired in jurisdictional fog, or at least claim that federalism and fuzzy jurisdictional boundaries were to blame. In this chapter, I have tried to make a strong case for resurrecting the study of public inquiries as processes that perform critical, but often overlooked representational tasks. Inquiries must be understood as more than simply fact-finding investigations or big-picture policy exercises. Few would have predicted that this inquiry into a particular series of events would have unleashed such a wave of civil society activity. Indeed, as Salter notes in a brief discussion of the Krever Inquiry, the testimony of victims was the starting point for its work and cannot be treated separately: “The Inquiry’s real job was … to issue the report that the people who had been harmed might have issued, had they been in a position to write it” (Salter 2007, 303). While it is difficult to determine whether Krever wrote the report that victims would have written, it is clear that his actions during the inquiry were pivotal in structuring the environment for political action on behalf of victims. NOTES 1 Indeed, the presumed role of evidence in policymaking has generated a great deal of scholarly debate, especially among scholars interested in how evidence informs policymaking in the field of health (see Fafard 2008). 2 André Picard disagrees with this point, arguing, “There are names. And there is blame. In fact, there is more than enough of it to go around, and the repercussions will be felt for years to come” (Picard 1997).

10 The Romanow Commission on the Future of Health Care in Canada: Laying the Groundwork or a Missed Opportunity for Policy Change? Patricia L. O’Reilly

Introduction Since “medicare” was instituted in the mid-1960s to cover hospital and physician services to all Canadians, health care has been an important public finance issue, but perhaps never more so, post-inception, than in the years leading up to the 2002 Royal Commission on the Future of Health Care in Canada, known as the Romanow Commission after its chair, former Saskatchewan premier Roy Romanow. The 1990s had ushered in an era of debt and deficit-reduction concerns for all governments, as well as a New Public Management (NPM) administrative focus on insufficient financial accountability and public participation in Pan-Canadian policies and programs. The federal government was cutting funds everywhere, so it was inevitable there would be a reaction when it did so in health care in 1995.1 It was also inevitable that that reaction would stir up intergovernmental tension in the federation at the same time health care costs were increasing. Health care is an important intergovernmental issue, played out in a forum of ongoing national/sub-national battles over jurisdiction and money. By the fall of 1998 health care had come to dominate the intergovernmental First Ministers Meetings, and deals were struck in 1999 and 2000 that resulted in a return of federal funds to the provinces and territories. However, concerns persisted about the long-term financial sustainability of the system, particularly in areas left largely unaddressed in 2000 such as primary care, home care, and pharmaceutical costs and coverage. Health care was also dominating election platforms in the late 1990s, and leaders were making electoral promises that were largely unrea­ lizable under the circumstances, such as the reduction of hospital and

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physician wait times. Clearly they saw a dissatisfied public looking for concrete solutions for a supposedly comprehensive, universal system running under-capacity. Public opinion polls repeatedly saw health care as the public’s number one concern, and these polls were driving political strategies. Health care was also returning to the founding days of medicare when it was both a judicial and a parliamentary issue. Some provinces were taking their disputes over health care to the courts, while others were threatening to do so, in the late 1990s, and the Canadian Parliament and legislative assemblies were commissioning studies on “what to do with health care.” From 1997 to 2002 there were three federal and five provincial reports on health care produced – all of them substantive. Lastly, since it was such an important public, political, financial, administrative, intergovernmental, electoral, legislative, and legal issue throughout Canada, health care was, of course, an important media issue. There was much reporting of the “ills” of the system and the failure of the national and sub-national governments to deal with them. All of these conditions were coupled with what some said at the time was a federal government in need of a distraction from intense public scrutiny over an internal scandal (Human Resources Development of Canada), which Chrétien himself reported as having done “great damage to our public life and our public institutions” (Chrétien 2007, 227). There was certainly enough pressure on the system and particularly the political executive, then, for the calling of a royal commission. Indeed several provinces initiated inquiries on health policy and the health care system. Certainly there were more than enough preconditions for policy change. The effect, however, of the Romanow Commission on policy change proved to be marginal and limited, like the Gordon Commission and the Royal Commission on Aboriginal Peoples (discussed in chapters 3 and 8 respectively in this volume). Ideas These larger conditions and ideas that resulted in Prime Minister Chrétien setting up the Romanow Commission, were, of course, influential in its structure and mandate. The idea that, despite reinvestments of federal money, health care was still in trouble was a common theme in the provinces and the media, and for those of the public who heard and told stories of the dangerously long wait periods for life-threatening illnesses and home-care facilities, or the high cost of drugs, or the

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inability of Canadians to find a family physician. Questions were still being raised about the sustainability of the system as it existed. According to one participant in the Romanow Commission, “Sustainability was the key idea for the provinces. They felt they had huge fiscal risk.”2 On a similar note, another said, “The most important external idea [from the government] for the setting up of the commission of inquiry was the desire to preserve the essential element of a single payer system.” That is, the provinces wanted assurance of long-term sustainability, and the federal political executive had a voting public that wanted to maintain medicare as a publicly funded health care system. In fact, they wanted it expanded. The provincial leaders had their own portions of these same concerned voters within their own jurisdictions, of course, and as one provincial finance minister of the day put it in 2003, “Provincial governments have been spending massive amounts of money on health care, not on the bases of sound policy analysis but in response to pressure from polls about public opinion” (MacKinnon 2003, 245). However, provincial leaders were divided in their commitment to the public system. None dared suggest dismantling it, so moving more towards a privately funded system was not really an idea of any importance to the commission, as I was told. However, some of the provinces were interested in supplementary sources of funding and limited private involvement. Some had been attempting to introduce or considering user-fees and health premiums for patients/citizens, but in the context of the commission this essentially became a divide, not between public versus private funding, but rather (the more watered-down version) between public versus private delivery of services. According to participants in the commission, the premiers of Alberta, Ontario, Nova Scotia, and New Brunswick, and (later) British Columbia wanted more private delivery; other premiers, at the time of the commission, did not. Notably, these ideational pressures were external to the commission. While “improved intergovernmental relations” were, according to a commission participant, an important part of the commission mandate, as was the intent to “look at the role of private funding in health care,” there were no medicare dissenters put on the commission. As with several of the COIs studied in this volume such as the Royal Commission on the Status of Women, the Berger Inquiry, the Macdonald Commission, the Royal Commission on New Reproductive Technologies, the Royal Commission on Aboriginal Peoples, and the Krever Inquiry (see chapters 4, 5, 6, 7, 8, and 9 respectively), what was heavily favoured

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in the Romanow Commission was the voice of the public. A key element of the mandate was to talk to Canadians to discover their concerns and desires for the system. Opinion polls had indicated that the public were generally happy with the existing public system (as compared to an alternative system, such as that in the United States) but were unhappy with intergovernmental wrangling and buck passing, growing health care wait times, and unfunded segments of the system. There was a general assumption, in the media especially, that medicare was a “sacred,” symbolic program for Canadians, but just what this meant was not exactly clear. Their commitment to public health care needed to be tested in light of the problems showing up in the system and concerns by their leaders about its long-term financial sustainability. Likewise, it was felt that the major health-provider interest groups in the sector, particularly medicine, nursing, and health-care institutional administrators, needed to be consulted. As one commission participant put it, “You need to get these influential groups on board in order to get policy implemented.” The broad public consultation of the commission fit with the federal government’s agenda at the time to improve accountability to the public for health care spending. This was a key concept. It was also tied to the federal government’s desire to get credit for the funds it was returning to the health sector. It had fought the provinces over this in their agreements of 1999 and 2000 (more below). Romanow recommended accountability be added as a sixth principle to the Canada Health Act (CHA). The Commission Report refers to its mandate as investigating and making recommendations “to enhance the systems quality and sustainability” (RCFHCC 2002, xv). So while financial sustainability was uppermost in many minds, the quality of the system – as in “deteriorating quality” – was also in need of repair. Academics, policy analysts, and health care administrators in the public service and health care facilities had long been calling for a restructuring of the sector, and recent intergovernmental agreements had acknowledged the need. So another important aspect of the commission’s mandate was to collect and enhance the research on potential restructuring and reform to the system. According to Chrétien’s senior policy advisor, the commission was, at the suggestion of Romanow, meant to “make recommendations going beyond the September 2000 Accord” (Goldenberg 2006, 338). The Action Plan for Health Care Renewal, signed by the federal, provincial, and territorial governments in the September 2000 Health Accord, had

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highlighted areas of particular concern under the headings “vision, principles, access to care, clear accountability and working together.” The vision and principles read as expected – the usual reiteration of obvious principles and obligations of governance, long stated at the FederalProvincial-Territorial First Ministers, Ministers, and Deputy Ministers of Health meetings (O’Reilly 2001a) – all of which appear to change next to nothing over time. The real driving ideas, then, were the others: longterm funding of the health care system, patient access to health care and the reforms this might entail,3 accountability to the public for money spent, and improved intergovernmental collaboration. Progress on these elements might then serve as some measure of the success of the commission. I will return to these elements at the end of the chapter to ask if, in more concrete terms, there has been change, but for now, the question to ask is whether or not the commission resulted in any shifting of these contested ideas or ways of thinking about health care. The answer is largely no. Romanow recommended an intergovernmental “Health Care Covenant” (RCFHCC 2002, 48–52), which would essentially reiterate the principles of the Canada Health Act (a federal act to which all of the provinces and territories had already signed on in order to receive ongoing federal funds); the Social Union Framework Agreement (another intergovernmental agreement but one that had already essentially failed); the terms of the 1999 and 2000 intergovernmental health agreements; and the existing professional and provider codes of ethics. The only new principle in the proposed covenant, that of “Canadians’ personal responsibility for staying healthy … and using the system prudently” was one any government would be happy to see fulfilled. Mostly it had all been said and done, and the fact that the proposed covenant ended with the standard intergovernmental war cry that “governments are entitled to have their jurisdictional roles and responsibilities recognized and respected in charting new directions for the health care system of the future” (52) was a good indication of how much weight it would carry this time around. Even this soft covenant was not adopted. The more detailed financial questions were discussed and debated by the commission: The advantages of a publicly funded system over a  private one. What percentage should the federal government pay? Should the transfer funds be contained in a block grant that included other social services, or separated out into a health transfer? Should the funds be indexed? And so on. These fiscal issues were very contentious, and it was felt by some that they did not really get the public hearing

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they needed, especially with regard to further privatization of the health care system similar to that of other Western countries using a publicly funded system. As critics such as Courchene and Mackinnon noted in their response to the commission report, there was a decided slant towards one school of thought on this issue (Courchene 2003; MacKinnon 2003). Private for-profit funding of the system was clearly ruled out from day one, and private for-profit delivery of publicly funded elements of the system (which would go against the wishes of the federal government) was unsurprisingly viewed largely with disfavour by the commission. Perhaps that is why, as one commission participant said, “There was no significant shift in thinking about funding, pre- and post-commission.” Another commented that there was also no serious questioning of the old block-funding model of federal transfers to the provinces. It was being challenged by the idea and reality of direct-topublic federal spending for public services, but this “could not even be talked about because of opposition to it.” This participant concluded, “There was no coherent way [put] forward financially by the commission, and the 2003 and 2004 health accords did not change this.” There was little shift in general thinking about reform and restructuring as a result of the commission. The provinces, having the jurisdiction to engage in this restructuring, were already busy with their own studies, and academics and other policy analysts had long been making concrete recommendations for reforms to the system. The commission felt its role here was more to synthesize research on best directions for reform and fill in the gaps in the literature (RCFHCC 2002, xv). It commissioned forty external discussion papers with external reviewers and for this reason did compile a serious body of work for health care policy analysis. Its final report also contained extensive chapters on potential models for home care and “pharmacare,” as well as a well-researched summary on Aboriginal health. Having said this, however, in its reporting there are few new recommendations for overall restructuring of the health care system. What is striking is the close resemblance to the issues and concerns targeted for restructuring in the 2000 intergovernmental Health Accord, the 2002 Romanow Report, and the 2003/4 Health Accords. When you think about it, if the commission had been influential in this area, there should be some differences among the three. Accountability has not been enhanced since the commission. It has not been added to the CHA, and intergovernmental measures taken just prior to the commission on health care reporting by both levels of government were being softened by the post-commission 2004 accord.

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At the time of the 1999 and 2000 health agreements, many of the provinces had been upset by federal insistence on this form of accountability, but a 2008 report from the Office of the Auditor General of Canada criticized the federal health care reporting for its inaccessibility to the public, inconsistency, lack of improvement, omissions in reporting, lack of strategy, and unclear position on the Health Council of Canada’s recommendations (more below on the latter) (Office of the Auditor General of Canada 2008). Improved intergovernmental collaboration as a concept was not new to the commission. The 1999 Social Union Framework Agreement was meant to do the same. The SUFA has been well documented as rich in ideas and poor in practice (Lazar 2003, 2; Facal 2005). From the outset, the biggest offender was the federal government, which repeatedly broke the terms of the agreement with unilateral policy and program action (not that the action was unconstitutional, but the collaboration that had been agreed to was missing), and the provinces retaliated with public advertisements meant to embarrass the federal government (McIntosh 2004, 30). Intergovernmental collaboration is a hornets’ nest abuzz with old relations, both formal and informal (see Relations below); health care is but one more pawn in the game (Inwood, Johns, and O’Reilly 2011, chap. 7). If the dominant ideas of the commission resulted in little shift, was there some policy learning, rather than policy change that might be attributed to the commission? The Romanow Report was one of several produced by the federal and provincial governments at the time, so it was used by the media and policy analysts for public debate with the other reports. Considerable media attention centred on the privatization issue, which ran across a spectrum of right to left politics with the rightwing Alberta inquiry (the Mazankowski Report) on one end, the leftwing Romanow Inquiry on the other, and a Senate committee report led by a Liberal senator (the Kirby Report) in the middle. Each also made recommendations for specific reforms to the health care system, as did other reports of the day, but the fiscal issue divided them. A proper comparison of these reports would require a separate study with all of the Canadian political nuances: for example, in Canada, the English-French division is always present in key debates, so the Quebec 2000 Clair Commission brings in another perspective heavily weighted politically towards provincial autonomy or decentralization of policy decisions and actions. Fooks and Lewis provide a good backgrounder, which lists the major agreements and disagreements in this set of reports that came

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out from 1997 to 2002 – seven of them between 2000 and 2002 (Fooks and Lewis 2002). For my purposes here, I will focus on the perspectives of the Romanow Commission participants about their relevance to their commission. One Romanow Commission participant said, “The other reports were quite influential, especially the Alberta Mazankowski, Saskatchewan Fyke, and Québec Clair reports. We took ideas about quality from Fyke, and about the role of the private sector from Mazankowski. [Perhaps more importantly] these provincial reports acted as windows on the provinces.” (The Ontario Sinclair Commission had been smaller in scope, focusing on hospital restructuring, but it was “consulted.”) Another commission participant referred to the whole set of inquiries and reports as “a dog’s breakfast”: “Fyke took the extreme efficiency argument – not money required but system management, but not as far as physician payments turned over to the regional authorities. Clair was looking at a modified public-private model with money saved up for a rainy day – which they later rejected as too expensive, when they did the math. Mazankowski was concerned with funding and was pro medical savings accounts.” About the Kirby Senate Report, the commission parti­cipants said, “Kirby did a U-turn on private delivery”; “We had an interesting relationship with the Kirby inquiry. We tried to do some managing of it, but in the end we followed it in the media.” So overall then, there was some policy learning from some of these other inquiries, but when asked how much effect the ideas from these other inquiries had on the Romanow Report and recommendations, I was told, “The other group of reports did not (fundamentally) change the thinking in the Romanow Commission … We all pulled our punches.” This may be part of the problem as it relates to policy change: too many people were pulling their punches and talking at each other, so the status quo remains. Institutions The institutional features of the Canadian health sector are well documented in the health policy literature (for the federalism institutions, see, for example, O’Reilly 2001a; Maoini 2008). The major features of the system include three levels of government: federal, provincial or territorial, and municipal. Put simply, under the Canadian Constitution the federal government has the power to spend money on health care, either directly to citizens or indirectly through fiscal transfers to the provinces and territories, and it may choose to attach conditions to this money, as  it has in the Canada Health Act and various intergovernmental

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health accords and agreements. The provinces, and to a lesser extent the territories, have the jurisdiction to design, manage, and deliver health services, for all but select groups such as Aboriginals and the military. Municipalities have little or no control over health care serv­ ices. The main institutional forums at the level of government are those of executive federalism: first ministers meetings, ministerial and deputy ministerial meetings, and their sectoral secretariats. (For a study of the interrelationship of these institutional forums over health care policy, see O’Reilly 2001b). The health care bureaucracy itself is large but with little ability to effect either financial or restructuring changes unless granted the ability to do so by the aforementioned governments and their executive political leaders. Health care delivery institutions such as the hospitals, specialized care institutions, and health clinics can have considerable voice in the system, as do regional health boards/authorities, professional and patient associations, pharmaceutical companies, and other organizations, but this is determined largely by the conditions of the day and/ or the willingness of governments to accommodate their interests. (Unfortunately for long-term planning, they do function as interests rather than as part of a whole.) Universities, science or policy research institutions and centres, or think tanks also have an interest in shaping the system, but their influence is also ad hoc and particular, with uptake determined by the external executive players. The system has not been designed with institutions capable of rising above the politics and the particular interests to direct the collective. The commission did call for a new national health council – for which others had also been calling – and it was instituted: Canada’s first ministers established the Health Council of Canada (HCC) in the 2003 Accord on Health Care Renewal, and its role was enhanced in the 2004 Ten-Year Plan to Strengthen Health Care. Funded by Health Canada, the Health Council operates as an independent non-profit agency, with acting Ministers of Health sitting as members of the corporation and a small secretariat located in Toronto. The HCC mandate is “to report on the progress of health care renewal, on the health status of Canadians, and on the health outcomes of our system. [Its] goal is to provide a system-wide perspective on health care reform for the Canadian public, with particular attention to accountability and transparency” (Health Council of Canada 2011). On the surface the HCC could be used as an effective research and advisory body – assuming that one more is needed. In reality, like most health care ideas and policies, after running the gamut of Canadian

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intergovernmental relations, the “national” council was watered down to a safe innocuous version, without full sign-on from the provinces. It has yet to prove any more effective than previous institutional bodies in bringing about long-term change in health care. In fact, it is now slated for de-funding and shut-down by the Conservative federal government. One commissioner participant noted, “It came out differently from what was recommended by the commission … I don’t think it was designed well. It is hard to say whether it will prove effective, but I don’t think so.” True, it was not the council envisioned by the commission, but one has to wonder at the naivety of the report author who wrote, “A new Health Council of Canada – a creation of the federal, provincial and territorial governments – should depoliticize this (factitious intergovernmental) debate [over health care]” (RCFHCC 2002, 47). When asked about the institutional changes that might be attributed to the commission, one participant said, “We may see institutional change down the road. We are stuck on the drugs issue, and it is costing. The provinces cannot do it alone. This issue will be back on the table in five or ten years, and the Romanow Commission could have some impact then. The same is true for Aboriginal health. There is a lot of overlap, duplication, unfairness, and waste, but the money is not improving Aboriginal health.” Another legacy of the commission, as seen by those engaged in it, was its model of public participation, which could be institutionalized for other policy forums and debates. The “Citizen Dialogues” did represent an impressive and ambitious exercise in public engagement and debate (RCFHCC 2002, Appendix C), and it was well known that Romanow took these dialogues seriously. However, there are other similar and excellent public engagements such as this, such as the Berger Commission, the Royal Commission on Aboriginal Peoples (see chapters 5 and 8 respectively in this volume), or the Canadian Pension Plan (Little 2009) where dialogues and debates were also well constructed, yet few seem to result in change to the general structures of public participation in everyday policymaking. That is, they are rarely used as models. A oneoff ad hoc policy process does not translate into ongoing institutional change for sectoral policy developments. Reviewing a commission of inquiry raises the question of the role of the commission as an institution per se, as a temporary institution set up to address a particular policy or legal issue. One might then ask in what way the features and dynamics of the commission affected its output and outcomes. To begin with, this was a small institution with a

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limited budget and a short time frame: eighteen months and $15 million, compared, for instance, to the Royal Commission on Aboriginal Peoples’ five years and $50 million (see chapter 8 in this volume). As one commission participant put it, “It was fast and results oriented.” And it did report on time and on budget. When asked about the advantages of a smaller commission over a larger one such as the Macdonald Commission (see chapter 6 in this volume), one participant thought the advantages of a larger commission would be “regional representation and identification with the COI; as well as sharing of the work load, but this is offset by the fact that the inevitable decision making has to be done by one person.” That one person, the commissioner, picked by the prime minister, was a former premier, Roy Romanow, who had an acceptable take on the public/private fight but was also widely respected politically and could be expected to be what other participants called “a forceful leader” on the commission as well as the most likely premier to act as intergovernmental mediator between the federal and provincial governments. The Romanow Commission was the first such inquiry to operate, in the main, outside of the national capital region, in Saskatchewan (and for the Quebec member, “in the air” [flying between cities]), and this gave participants more autonomy, they said, as they “flew under the radar of the Ottawa media.” The terms of reference, I was told, were strongly influenced by the commissioner and the directors – or director (Gregory Marchildon) as it later became, when one of the two directors (Steven Lewis) left the commission. I was told this leave-taking was due to a difference in style and strategy as well as some tension between two strong individuals being asked to share one position and one pen, but probably had little overall effect on the final report. I was told by others that Lewis had felt the releasing of an interim document could compromise the integrity of the project, and in this he was right, since it was poorly received by both the press and the academics, and nearly resulted in the shutdown of the commission by Chrétien. One commission participant thought the inquiry may have been too short. It was “just getting up to speed when the interim report was due.” Inside the commission, Romanow set up internal critical feedback. Senior staff played “critic and devil’s advocate” to debate all central issues of the commission. There was, I was told by a participant, “a lot of suspicion, discomfort, and resentment about the commission taking health care policymaking out of the hands of the traditional civil service,” unlike the experiences

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of the Macdonald Commission and the Royal Commission on Aboriginal Peoples, which worked more smoothly with civil service (see chapters 6 and 8 respectively in this volume). As could be expected, departments were not anxious to hand over their policy territory.4 This was exacerbated by long-standing intergovernmental tensions over central versus peripheral power, such as the federal ministry (Health Canada) versus the provincial health ministries; central agencies versus line departments; or department versus department. The long history of these administrative centre-periphery turf wars on intergovernmental policy issues is well documented by Inwood, Johns, and O’Reilly (2011), so it comes as no surprise they would be found reproduced in the “para-institution” of a commission of inquiry, particularly when the policy issue has strong intergovernmental elements, thus enhancing horizontality and the central agency role. Even though the commission was clearly federally influenced, this did not stop federal central agencies from “becoming very challenging,” as one participant put it. He went on to say, “The Department of Finance was impossible and the federal intergovernmental people were difficult.” Interestingly, I was told that while this tension held true below the highest levels of authority, at the peak political levels things went more smoothly. Chrétien and Romanow had a good relationship, and the very top of the federal executive for this policy area – Chrétien, his senior policy advisor Eddie Goldenberg, and Health Canada Minister Allan Rock – were “on board.” Perhaps this is why, when asked about the overall effect of all this, several commission participants said they doubted that any post-­ mandate central or departmental influence had substantially changed the outcome of the commission. Or perhaps this autonomy, despite adversity, is one reason why external commissions of inquiry serve an im­portant role in policy debates, since they can rise above much of the animosity as long as it does not come from the very top of the hierarchy. However, there is a difference between a relatively autonomously written report and the implementation of its recommendations. The adversity seen throughout the central and line bureaucracies during a COI may well signal the barriers to implementation of its recommendations. Actors There are strong state and societal actors or stakeholders in the health sector. As we have seen, state actors include the political executive and parties, central agencies, and finance and health bureaucracies, along

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with other interested or affected political and bureaucratic organizations throughout Canada and occasionally the world. Societal actors include the health care providers and practitioners, medical-based corporations, public health care organized interests (seniors, home care, and pharmacy care groups, Health Action Lobby, CHC, etc.), the general public/ patients/voters, pundits, scholars, and journalists, and, as one commission participant put it, “the Canadian Establishment” (for description of these stakeholders, see O’Reilly 2000). The key actors involved in or given sanction by the commission on the state side were Prime Minister Chrétien and his close advisors, the premiers and territorial leaders of Canada, and to a lesser extent the relevant bureaucracies. On the societal side, any societal groups interested to participate in the public (and few private) meetings of the commission were given access. The opinion and knowledge of the public and scholars were particularly sought out. As is well known, Chrétien was a pragmatic leader who was not prone to calling commissions of inquiry. He kept the Romanow Commission short and small. According to a key commission participant, he told the commission he “wanted facts – you can add on the philosophy as well, but give me the facts.” Chrétien was also known as being a short-term thinker and an unpredictable actor, or, as one commission participant put it, “Chrétien studies stuff but he rarely makes decisions, and when he does, you get twenty at one time.” It was up to the commissioner to ensure that more long-term, systematic thinking came out of the inquiry. This he did with a small staff of intelligent people who had both scholarly and governance experience (including Gregory Marchildon, Tom McIntosh, Pierre Pierre-Gerlier Forest, Steven Lewis for a time, and intergovernmental specialists such as Andrew Noseworthy), which developed into a cohesive group willing to challenge each other and the commissioner on the ideas coming out of their inquiry. Many of those ideas came from another important set of actors, the academic community, which I was told “showed a lot of good will” and “held a lot of sway” with the commission and commissioner. “They provided tremendously intelligent analysis.” Unlike with most commissions, studies produced for the Romanow Commission were released to the public as they were produced. I was told the commission had not counted on the amount of media attention this would generate, but “it took the heat off the commission and allowed us to write.” The provincial and territorial government leaders were consulted throughout the commission, but this consultation was heavily influenced, as discussed above in Ideas, by the premiers, who were locked

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into a fight with the federal government over fiscal and jurisdictional issues, and as discussed below in Relations. The mandate of the commission had included clarification on and recommendations for improved intergovernmental collaboration, which one chapter of the report did discuss, but there is not much new there. One commission participant thought that “in retrospect, maybe the report had focused too much on the intergovernmental. It seemed appropriate at the time.” Societal actors across Canada were given considerable access to the commission. Such pan-Canadian representation offset the lack of broader regional representation concomitant to the choice to set up a small commission. A two-stage dialogue was set up in which individuals and groups first spoke to the commission and then engaged in “citizen dialogues” where participants discussed issues and made triage decisions (RCFHCC 2002, Appendix C). The commission also contracted new public opinion polls on health care (Mendelsohn 2001). This public input was used as a “litmus test” whereby “every recommendation of the Commission was tested by the question ‘Does it square with what we heard from the public?’” That is, each was held up to “the values the public said the system had to continue to reflect.” Key interest groups were also given an extra meeting with the commissioner the day after the public meetings, but I was told the more dominant practitioner and health-care business groups did not get as much access as they would have liked and the interest groups “did not overly sway things.” When asked whether all the verbal and written material from the public had overwhelmed the commission, as it often does in such large public consultations (Inwood, Johns, and O’Reilly 2011), one commission participant admitted, “There was a sense in the end that we had buried ourselves.” When asked if the commission had resulted in, or appeared to play a role in, any post-commission realignment or forums for interaction of these actors, the reply was that the impact had not been large, but that there were subtle shifts after the commission reported. While the report, not surprisingly, did little to realign the deeply entrenched intergovernmental actors and their positions – Chrétien was still behind the commission mandate, and provinces were still divided along expected ideological and intergovernmental lines – the report did provide new ammunition for medicare supporters with its strong interpretation of public support for the existing and/or expanded system. A commission participant noted other post-commission shifts: labour unions began to

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focus more on delivery issues after the commission, e.g., with CUPE reports monitoring private for-profit health care, although with little broader discussion, and the Canadian Medical Association modified its position after the report, moving back to the pre-1962 days towards stronger links with business interests. Interestingly, “the Commission Report upset the Canadian Establishment because they did not get what they wanted, that is, legitimacy of private for-profit delivery.” In addition, they were concerned that “everyone knew by the end of the commission where the public stood – in support of medicare.” “This was not as clear before the commission.” “For business, the Romanow Report represents the enemy.” For the nursing profession, a nurse practitioner suggested, “Nursing’s commitment to collaborative health care teams and other details in the Romanow Report such as evidence-based practice and accountability has been enhanced through educational use of the report.” That is, the report has been used in nursing educational programs and has “entered the nursing culture” (Ontario nurse practitioner interview, 12 May 2010). Relations The long history of intergovernmental tensions between the two levels of government in the Canadian federation is well documented in the federalism literature. Formally there is no hierarchy between the federal and provincial governments or among the provincial or territorial governments, but in reality there is. As always, money and size tend to translate into power. The federal government has more of both (with size including electoral population), and some provinces are richer and bigger than others. Weighted turf wars over money and jurisdiction are the order of the day. However, the half decade that preceded the signing of the early 2000s health accords was particularly acrimonious. Federal unilateral action to decrease the debt and deficit in the mid-1990s was met with anger and mistrust by the provinces and territories. It tainted formal and informal relations for a long time, and the signing of the earliest agreements in 1999 and 2000 was accompanied by heightened fears of federal “intervention.” It was thought by the provinces that “enhanced accountability requirements attached to federal fiscal transfers might be providing a backdoor into the delivery of health care for the federal government, and this had ‘upped the ante’ for the power games between the two levels of government” (Inwood, Johns, and O’Reilly 2011, chap. 7).

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When the Romanow Commission was announced, there was considerable concern from members of both levels of government. On the one hand, the provinces feared the commission would become a spokesperson for the federal government; Alberta and Quebec were especially opposed, but most of the others were wary, with some becoming more so as premiers were replaced in some provincial elections. On the other hand, ironically, many federal people worried the commission would be captured by the provinces, since it was led by a former premier. There was substantial concern about health care financing and what the recommendations from the commission would mean for it, but there was also an informal truce called when the commission began. As a commission participant put it, “There was a general political climate that said the arguments and finger pointing had to stop – let’s wait for Romanow. [They wanted to] put the intergovernmental fighting on hold.” Chrétien was, of course, aware of the potential intergovernmental tension associated with a COI on health care, and the commission was deliberately strong on intergovernmentally astute personnel. At the political level, Romanow was respected and generally liked by other leaders, and at the administrative level, Marchildon was an experienced and respected intergovernmental official who had the added advantage of crossing over into the scholarly arena. The commission wanted the provinces on board. “We felt this was very important, so a lot of energy was expended on dealing with the two orders of government.” The commissioner had to deal with the premiers regularly – although the Quebec premier, Bernard Landry, made himself less than available.5 Also, as we saw above, relations at the administrative level with the federal central agencies were strained, particularly Finance and Intergovernmental Affairs, as well as with some of the sectoral department officials of either level of government. There was a particular fuss from this opposition over the “Romanow gap” between the projections for federal health transfers and those recommended by the Romanow Commission. However, in the end, these external political and administrative relations did not appear to have any considerable effect on the commission report. Within the commission itself, there were the standard formal commission roles and responsibilities. The commissioner clearly was engaged and played the strong lead implicit in the position. He also listened to a lot of advice and took the public hearings and academic studies seriously, but in the end, “they were his recommendations.” Overall, commission relations appeared good, except for the loss of one director, which left the other lead director holding the pen, although this did not

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appear to damage overall relations much. In comparison with, for example, the goings-on of the Macdonald Commission (see chapter 6 in this volume and Inwood 2005), or of the Royal Commission on New Reproductive Technologies (see chapter 7 in this volume), the Romanow Commission was fairly tame and as a result ran smoothly. Perhaps these smooth relations were predetermined at the level of ideas and ideology embedded into the Romanow Commission. Regarding relations with health care stakeholders, interest groups in theory have equal standing in a policy process, but this is often offset by the reality of power relations or, at the least, the idea that key/powerful stakeholders need to be “on board.” As we saw earlier, the latter was true for the commission. I was told there was a lot of “unsubtle” pressure from the key stakeholders (e.g., medicine, nursing, pharmaceutical companies, hospitals, and specialized care facilities) and not just at the hearings – although they were given an extra session the day after the hearings. However, there was awareness that this pressure needed to be balanced with the public interest, and “that took a lot of keeping walls up. It helped that we were out of Ottawa [away from the national health association offices],” said one commission participant. In relations among key stakeholders of the sector and between them and state and public actors, turf wars and vague accountability relationships abound (O’Reilly 2000), and these inevitably arrived at the table for the commission exchanges and dialogues. But like the political and administrative relations above, it does not appear that the commission or its recommendations had much affect on these stakeholder relations. Both formal and informal inter- and intra-governmental relations and sectoral relations remain today much as they were prior to the Romanow Commission. Conclusion In his 2002 report, Romanow says, I am more confident than ever in the system’s potential to meet the needs of Canadians, now and in the future. Canadians remain deeply attached to the core values at the heart of medicare and to a system that has served them extremely well. My assessment is that, while medicare is as sustainable as Canadians want it to be, we now need to take the next bold step of transforming it into a truly national, more comprehensive, responsive and accountable health care system. Making Canadians the healthiest people

210  Commissions of Inquiry and Policy Change in the world must become the system’s overriding objective. Strong leadership and the involvement of Canadians are key to preserving a system that is true to our values and sustainable. (RCFHCC 2002, xv)

Romanow was quite optimistic. Many others are not. If the question is asked whether there was significant change in policy that might be attributed to the Romanow Commission, the answer would have to be, largely, no. Its impact was marginal and limited. This is not to say its findings and recommendations do not have significant value and should not be used in the future, but rather, they appear to have had little impact on policy change, legislative change, institutional change, or funding reform. Or at least the commission has influenced change only in a limited sense in that it has been one of several sources of ideas that, taken as a whole, have had limited effect on pan-Canadian health care policy. The most striking evidence is that the 2002 Romanow Commission sat between two major intergovernmental health accords in 2001 and 2003, and if one compares these two documents, there is little change. In addition, the follow-up health accord, which might have taken up more of the commission’s recommendations, is even lighter in its policy demands than was its predecessor agreements. In fact, one commission participant thought, “The 2004 accord’s five areas of focus were the most illogical policy I have ever seen.” In addition, recommendations of the commission that were instituted after its final report such as the Canada Health Transfer and the Health Council of Canada were already underway and thus cannot be attributed to the commission per se, leaving little policy change than can be attributed to the commission. This was a well-run, thoughtful commission. So what happened? For one thing, the more difficult of the public/private and financial sustainability issues many believe necessary to health care reform were largely overridden in the formation of the Romanow Commission by a mandate to support medicare as it exists today. Likewise, dissenters were asked to provide proof of the economies and quality advantages of increased utilization of market elements in the system, which they did not do. Perhaps this was as much a structural failure as an ideational one. The point of a commission of inquiry is to include rather than shout out to those who want to question the limitations of the inquiry mandate – and in this case not just thinkers on the right of the political spectrum; there are fiscal analysts who question the wisdom of federal block funding, and there are many moderate academics who believe Canada might wish to emulate the European style of using market competition in

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health care, but they too run up against the “sacredness” of medicare. As one commission participant put it, “There was no significant shift in thinking about funding pre and post the commission.” Perhaps Chrétien and Romanow got it right and the public can have all it wants, but open productive debate has yet to occur. It will likely come as health care continues to swallow large portions of provincial budgets and the public begins to realize there is less and less left, as MacKinnon argues, for education, innovation, and social welfare (MacKinnon 2003). Major health care restructuring has not happened. Nor, I would argue, has there even been any real shift in thinking about it. Most of today’s ideas have been around for years and the early First Ministers Meetings and agreements reflect this (O’Reilly 2001a, 2001b). The 2003 five-year, $23.4 million arrangement made by the federal government with the provinces and territories and the small amount of restructuring that has occurred in the sector because of it, primarily in government reporting and accountability measures, would likely have occurred without the commission. In the end, given this lack of progress on funding and restructuring, which are the key determinants to health care sustainability, one has to wonder at the efficacy of health care inquiries in Canada, at least as a  forum for full exposure and development of ideas that would see implementation. So what can be attributed to the commission and why did it have so little impact? It pulled together an impressive body of research and put it into an accessible form that can be drawn on for years to come. It also exemplified a model consultation and research transparency process. But at the risk of sounding overly critical, was it necessary to spend $15 million to pull together and modestly develop the literature on health care reform, which has been saying much the same thing for twenty years, and to find that the public likes medicare? The really contentious issues around the desire for and the reality of publicly funded health care – the limits of universality – or the political and professional barriers to health care restructuring, or the public’s inability to triage its exponential desires for reactive and pro-active health care were not given priority by the commission. And that, I would say, is why it is sitting on the shelf. I was told by one participant that the chief accomplishment of the commission was “the delaying of the debate for ten years and therefore buying peace,” but as a member of the academic community that has been calling for action against inertia for decades, I find this to  be  a  strange commendation. This sounds like the process-talk of

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intergovernmental relations, where peace and diplomacy are often given precedence over policy (Inwood, Johns, and O’Reilly 2011). Perhaps the commission was too heavily weighted with intergovernmental diplomats and too lightly weighted with health care reform specialists. But it is not the job of the commission to implement its recommendations. So why was it not taken up by the political leaders who were in a position to do so? When I asked the participants the difficult question of why the commission appears to have had limited impact, those to whom I spoke, said, We did not put enough pressure on the Feds to restructure, and there was not enough federal leadership. We missed a moment where the public were onside and things could have been done.   We got money and the Canada Health Transfer, but we were naive about the ability to buy change in good times. In good times the system simply absorbs the money. With the provincial reforms in the 1990s, the biggest change happened when the money was the tightest. The problem was there was money put back into the system with so few conditions attached. There was no willingness on the part of the Feds to attach conditions or on the part of the provinces to accept them. Within a year or so, the window of opportunity had closed.   They had the kind of money as a government that only comes once in a very long time for transformational change, but they did not do it … They did not move away from block funding … with its lack of conditionality and accountability … and this reinforced the status quo.   They used the money to sustain a system that is unsustainable.   We are fundamentally at odds in Canada. We are going to have to think about universal access.

Other health care COIs have resulted in considerable policy change. For example, the Royal Commission on Health Services 1961–4 (the Hall Commission) “astounded” powerful medical interests and revolutionized the system by recommending, following the Saskatchewan experiment in comprehensive universal hospital and physician health insurance, Canadian “medicare” as it came to be known (Tuohy 1999, 53–4; Ratushny 2009, 34). In contrast, we have seen little change as a result of the Romanow Commission. One might wonder how much this can be attributed to a political leader who was less than enthusiastic about commissions of inquiry per se (Chrétien 2007, 188), but there is more to it than that. I was

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told by a commission participant, “The war over the commission began the day the report came out.” It should have started well before that with the mandate – and resulted in a tougher debate over difficult choices, a much-needed pan-Canadian learning process, and a wider set of conclusions. The Romanow Commission did not change health policy, I would argue, precisely because it was never allowed or able to shake up the dominant ideas, institutions, actors, and relations of the sector. NOTES 1 While the design and delivery of health care falls under provincial jurisdiction, the federal government transfers funds toward health care costs. 2 Interviews with persons involved in the commission were confidential, so all interviewees, regardless of rank or influence, will be referred to simply as participants. 3 The list of items of concern regarding access to care were “health promotion and wellness; appropriate health care services, especially primary health care; supply of doctors, nurses and other health personnel; home care and community care; pharmaceuticals management; health information and communications technology; and health equipment and infrastructure.” 4 One example occurred when some civil servants were unhappy over what they felt was the “extension” of the commission mandate into globalization and health. The commission gave a contract to investigate this issue to a body with strong advocates of medicare – the Centre for Policy Alternatives. This upset the Department of Foreign Affairs and International Trade, because it was getting into their territory over free trade agreements and medicare. The commission responded by warning the centre’s researchers to produce a “balanced” study and by putting a former free trade negotiator, John Johnson, on the project. Things were reported to have gone fairly smoothly from there. 5 For a better understanding of the unique Quebec position on the Romanow Commission, see Graefe and Bourns 2008.

11 The Walkerton Inquiry and Policy Change Carolyn M. Johns

Introduction Walkerton, Ontario, like many small communities in Canada, is an agricultural town located in close proximity to a river and reliant on groundwater as a source of drinking water. In mid-May 2000 it rained heavily in Walkerton. Runoff from this rainfall made its way across the land, into surface and groundwater and ultimately into wells that supplied the town’s drinking water, which became contaminated with deadly bacteria, primarily Escherichia coli. Some 7 people died, 65 were hospitalized, 27 developed a serious and potentially fatal kidney ailment, and more than 2,300 in a town of 4,800 residents became ill (Hrudey et al. 2002). The tragedy sounded alarm bells in Ontario, and across Canada, about the safety of drinking water, water pollution, and the uses and management of water resources. After a week of pressure from the public, m ­ edia, and opposition, the Conservative government established an independent public inquiry to examine the issues related to the tragedy. The role of focusing events or crises has for some time been central to analysing punctuations in policy trajectories that are otherwise characterized by stasis or even policy inaction, whether one adopts an incremental or more “punctuated” view of the policy process. The outbreak in Walkerton can be classified as a classic “focusing event” in that it was shocking to the public and policymakers that community drinking water supplies could be unsafe, and the tragedy triggered an agenda-­ setting, problem-definition, and policy-development process. Like all focusing events, such as those that precipitated the Krever Inquiry and the Goudge Inquiry (see chapters 9 and 12 respectively in this volume), Walkerton provided a trigger for policy action in a previously neglected policy area and garnered sustained media interest (Scheberle 1994, 74).

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Attention was accompanied by negative assessments and criticisms of existing [water] policies (Baumgartner and Jones 1993, 51) and environmental policies more broadly. Walkerton also represented a convergence of three distinct streams of a classic “policy window”: a problem is recognized, solutions are developed in the policy community, and a political climate makes it the right time for policy change (Kingdon 1995, 165). As outlined in chapter 2, one approach to assessing the impact of COIs on policy change is to examine how the findings and recommendations of the inquiry were received and whether the recommendations were implemented. Using these measures, the Walkerton Inquiry has been touted by legal scholars as a comparative success (Manson and Mullan 2003b; Stutz 2008; Ratushny 2009). All 121 recommendations made by the commissioner were accepted and implemented. However, as noted in chapter 2, assessing the policy impact of an inquiry is far more than a scorecard of whether the government accepted or rejected the recommendations of the inquiry (Pross, Christie, and Yogis 1990, 13). The Walkerton Inquiry, like other commissions of inquiry in Canada, supplanted for a time the traditional institutions of politics and policy through which ideas and interests are normally reflected (Inwood 2005, 4). Like the Royal Commission on the Status of Women, the Macdonald Commission, the Royal Commission on New Reproductive Technologies, the Krever Inquiry, and the Goudge Inquiry (see chapters 4, 6, 7, 9, and 12 respectively in this volume), the effect of the Walkerton Inquiry on policy change was transformative and direct. Using secondary sources and key informant interviews, this chapter documents and analyses the extent of policy change through a pre- and post-inquiry analysis. It is argued in this chapter that more than ten years after the Walkerton tragedy and inquiry, there are some very tangible, observable policy changes. While arguably some of these policy changes would have likely occurred in the absence of the inquiry, this chapter analyses the inquiry as an important institutional venue that altered the ideas, institutions, constellation of actors and relations engaged in water policy in Ontario. However, despite evidence of significant policy change, when examined more broadly from a historical, comparative, and environmental perspective, policy change has been more limited. Ideas Ideas about water have evolved in Ontario alongside its cultural, social, and economic uses. For centuries Aboriginal peoples in Canada had a set of spiritual ideas about water and human interactions. However, for

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most of Canada’s political history, water has been viewed fundamentally as a natural resource for economic and domestic uses. Authority related to surface and groundwater in Canada is shared under the Constitution, and authority over water has evolved asymmetrically to be the responsibility of provincial governments under natural resource and local authorities (Johns and Rasmussen 2008). Ideas about water prior to Walkerton evolved in this legal and political context over 150 years. The inquiry itself documented the history of water management in the province. For most of the province’s history, water was not considered a public policy issue, and water uses were largely based on property and riparian land rights. Fire protection and concern over public health in Ontario’s urban areas were the first issues that prompted calls for public policies related to water. Cholera and typhoid outbreaks in the 1830s prompted public health officials to lobby for the construction of Canada’s first sewer systems and establish the first public boards of health in Upper Canada in 1833 (Brooks 2003, 265). In response to a series of outbreaks and emerging science related to water pollution, public health advocates and engineers pushed for government action in the form of the Public Health Act and water infrastructure. Reflecting the dominant policy ideas of the time, this period has been referred to as the “public health era” of water policy in Ontario (Benedickson 2002). By the 1950s it was clear that economic ideas were becoming central. Although watershed-based institutions had been established in Ontario under the Conservation Authorities Act (1946) and conservation ideas were emerging, the focus of conservation authorities during this time was primarily on flood plain management, not water pollution or watershed protection. The pollution case from the KVP pulp mill on the Spanish River and sewage disposal uses on the Thames and Don Rivers directed attention to the overall statutory framework regulating water quality in Ontario and highlighted the dominance of economic ideas and interests over water quality ideas and interests (Brooks 2003). Despite growing awareness of negative impacts of the increasing number of water uses from urbanization and industrialization, ideas accepting a hierarchy of uses were by this time embedded in water institutions (Sproule-Jones, Johns, Heinmiller 2008). The Ontario Water Resources Act (OWRA) and the creation of the Ontario Water Resources Commission (OWRC) in 1956 did broaden the provincial mandate over surface waters and groundwater. However, the OWRC still reported to the minister of health (Merritt and Gore 2002), water remained viewed

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as a municipal issue (Benedickson 2002, 64), and from 1956 into the 1970s the focus remained on water infrastructure and engineering. In the 1970s ideas about conservation and protecting the natural environment were increasingly valued by Ontarians. In 1972 the Ontario government created the Ministry of the Environment (MOE), amended the OWRA, dissolved the OWRC, and transferred its responsibilities to the new MOE. In that same year the Environmental Protection Act (EPA) was enacted. Combined with the OWRA, these two statutes were used interchangeably by the MOE to manage water resources in the province (Swaigen and Winfield 1993). In that same year, the first Great Lakes Water Quality Agreement (GLWQA) was signed, and clean-up efforts began in the basin. Science revealed the extent of environmental damage from industrial and human uses. By the end of the 1980s a broader range of ideas about water had emerged. However, heightened awareness of these environmental ideas was short-lived. The decade prior to Walkerton witnessed a significant shift in ideas about water, and the environment more broadly. Starting with the early 1990s recession, economic ideas began to trump concerns about the environment, and ideas about the role of the government in the economy became front and centre. By the mid-1990s the environment was not a priority for policymakers or citizens. After twenty years of government efforts in the Great Lakes, Canadians were under the impression that water quality was improving in watersheds across Canada. The dominant idea about water quality was that point-source water pollution was the culprit and that large-source polluters were being regulated. There was a widespread belief that people couldn’t die or become ill, because the water was treated and safe. The Walkerton tragedy shattered this idea and began a policy debate about water. On 23 May 2000 public health officials finally determined water pollution was the cause of illness and deaths in the community. The human health impacts of water pollution were shocking. Contaminated drinking water was identified as the problem. After considerable debate and pressure for accountability for the outbreak, Premier Mike Harris established an independent commission under the Public Inquiries Act on 13 June 2000. The three-week period between the tragedy, the announcement of the inquiry, the selection of the commissioner, and the drafting of the formal terms of reference were foundational in defining the scope of the inquiry and setting the inquiry on its two-year trajectory. Ac­ cording to a representative from the Canadian Environmental Law Association (CELA) who was in Walkerton organizing and representing

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residents, the process of demanding an inquiry and discussing the mandate with the government were underway almost immediately. Like other COIs, selecting the commissioner and crafting the terms of reference were crucially important (Larson 2006). Soon after the Harris government announced the inquiry, Justice O’Connor was approached, on the basis of his legal expertise and record as a judge in the Ontario Court of Appeal. Although not a water expert, from the beginning he approached the inquiry with professionalism, fairness, and openness to learning from experts and citizens. He himself later noted, “A public inquiry commissioner may combine a number of roles: that of a fact-finder, like a judge; a proposer for policy reform; a healer for traumatized communities; and a manager with responsibility for budgets and an administrative and legal staff” (O’Connor 2007). After agreeing to serve, he was consulted and had discussions with the attorney general and other members of Cabinet about the mandate of the inquiry. While “the mandates of inquiries by nature are fundamentally reformist” (Simeon 1987) and the “terms of reference are usually broadly stated and governments of the day have little control over the shape or direction of the inquiry” (MacKay 1990, 34), the language does set some boundaries for the inquiry, and the words used in drafting them are not taken lightly by the executive. There are also cases where the terms of reference are interpreted broadly, and scope is granted for more radical mandates (Salter 1990). The language of the terms of reference for the Walkerton Inquiry (table 11.1) reflect how the issue was framed at the outset. In drafting the Order in Council, which included the terms of reference, Attorney General Jim Flaherty stated he consulted with Walkerton residents, the opposition parties in the legislature, as well as Justice O’Connor. As part of the announcement Justice O’Connor stated that he was satisfied he had “sufficiently broad powers under the terms of reference and under the Public Inquiries Act to carry out this very wide mandate” (Ontario, Ministry of the Environment 2000a). As noted by Justice O’Connor, “a commissioner has a very broad discretion to craft the rules and procedures necessary to carry out his or her mandate” (O’Connor 2007), and he used this latitude from the terms of reference to set up an inquiry structure. Although he had no experience leading an inquiry, he did have knowledge of the purpose and varied structure of public inquiries and consulted other judges who had experience. Justice O’Connor was well aware of the dual role of inquiries, and this informed his thinking about the purpose of an inquiry and its structure. To address the inherent conflict between lawyers’ values and

The Walkerton Inquiry and Policy Change  219 Table 11.1 Walkerton Inquiry Terms of Reference Terms of Reference to inquire into the following matters: (a) the circumstances which caused hundreds of people in the Walkerton area to become ill, and several of them die in May and June 2000, at or around the same time as Escherichia coli bacteria were found present in the town’s water supply; (b) the cause of the events, including the effect if any, of government policies, procedures and practices; and (c) any other relevant matter that the commission considers necessary to ensure the safety of Ontario’s drinking water, in order to make such findings and recommendations as the commission considers advisable to ensure the safety of the water supply systems in Ontario. Source: Ontario Ministry of Attorney General 2000.

policymakers’ values (Christie and Pross 1990, 2), and partially on the advice of Justice Krever, Justice O’Connor structured his inquiry in two parts, combining the two traditional types of inquiries – policy advisory and investigative (see chapter 1 in this volume) – into one. In terms of structure and process, the Walkerton Inquiry has been praised for avoiding some of the legal and bureaucratic start-up and process shortcomings of other public inquiries (Manson and Mullan 2003b). Part 1 was structured as a quasi-judicial style investigative inquiry focused on the fact-finding and accountability related to what went wrong, from the management of the local Public Utilities Commission by the Koebel brothers, to the role of local and provincial governments and their agencies in the system failure. Part 2 was structured as a more traditional policy advisory inquiry and provided Justice O’Connor with the scope to examine a wide range of issues related to drinking water in Ontario and “raise all issues related to the safety of drinking water, whether or not they have a connection to Walkerton” (O’Connor 2001, 4). Both provided Justice O’Connor with the foundation to contribute his own world view based on information from two primary sources: the public concerned with the issue and expert advice (Jenson 1994, 39). The recruitment of key personnel is an important ideational starting point that has significance for the ultimate direction of the inquiry (Inwood 2005, 75). The composition of the Research Advisory Panel (RAP) of experts was particularly interesting in terms of ideas. The sixmember panel included George Connell, a biochemist and former chairman of the National Roundtable on Environment and Economy; Steve Hrudey, a specialist in public health engineering who chaired the 1985 inquiry into the safety and quality of Edmonton’s drinking water; William

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Leiss, who had a background in environmental risk-management; Douglas MacDonald, whose specialty was Canadian environmental politics and policy and who had been an active member in a number of nongovernmental environmental organizations; Allison McGeer, a specialist in infectious disease and public health; Michele Prevost, an internationally recognized expert in environmental engineering; and the panel’s chair, Harry Swain, a former deputy minister of Industry Canada responsible for science policy advice for the federal government (Canada News Wire 2000; O’Connor 2002b, 503–5). Although an interdiscipli­ nary perspective was a key feature of the research component of this inquiry, given that “different disciplines do not see the same world” (Cairns 1990, 102), the expertise of the RAP was well grounded in science, public health, and engineering. From the outset, the scope of part 2 was the subject of some debate by the RAP. According to one interview, “We had quite a bit of discussion and internal debate on how much the focus should just be on drinking water, how much it should be on environmental problems. By and large the panel kept the focus on drinking water policy, as opposed to water policy, except for the question of source protection.” This was also reflected in the issue topics examined as part of the expert panels in part 2. The topic list included risk management; history of drinking water contamination in Ontario; machinery of government; drinking water standards; water pollution sources; production and distribution of drinking water; wastewater collection and treatment; training and accreditation; management, organizational behaviour, and communications; the costs of Walkerton, infrastructure financing; and the cost of clean water. Two particular concepts embodied the ideas that became central in the inquiry. First was the multi-barrier approach, which views water management from a risk management perspective as a series of measures to protect water beginning at its source – whether in underground aquifers or surface waters – all the way through the water treatment and distribution system, monitoring system, and response system for adverse conditions. Second was the concept that drinking water must be protected at the source in order for it to be of sustainable quality for drinking. “Source to tap” became a core idea underpinning the idea set discussed during the inquiry and in the final report and recommendations. It is not surprising that parts 1 and 2 reports are fundamentally ­focused on drinking water. A content analysis of the part 2 report (O’Connor 2002b) indicates that the discourse was grounded in human health. The full text of the part 2 report was 517 pages containing 175,174

The Walkerton Inquiry and Policy Change  221 Table 11.2 Content Analysis of Walkerton Inquiry Part 2 Report Word / word combination search

Frequency (total raw)

Water Drinking water Health Environmental Source protection Environment Water quality Watershed Risk Public health Drinking water quality Environmental protection Natural Pollution Human health Health protection Health risks Health risk Ecosystem Water pollution Ecological Ecology

3581 1222 515 372 281 278 271 246 198 148 120 73 55 39 18 15 14 12 12 5 4 2

words. Using content-analysis software, it is interesting to analyse the basic language of the report including single-word frequencies, word occurrences, and keyword combinations (see table 11.2). While these words and word combinations tell us only so much, they do reveal that the ideas and discourse that underpinned the inquiry were more in keeping with a human health approach that an environmental or ecosystem approach. As noted by one interviewee, “Public health is a very powerful frame. It also an engineering and management problem and what we can do. It is all part of this larger picture of our response to environmental problems, but fundamental values related to other species were never addressed by the inquiry.” The idea that one could die from drinking water was very powerful and resonated with every Canadian. The attention of the media and general public to this commission of inquiry seemed to be as extensive as – if not more than – that paid to any other commission in Canadian

222  Commissions of Inquiry and Policy Change

history (Manson and Mullan 2003b). As a result, one of the most evident changes was that the safety of drinking water became a concern for the public, particularly in the few years after the tragedy. The first area where this became evident was in media coverage and public opinion. Although, to my knowledge, there has been no public opinion analysis or content analysis of media coverage before, during, and after the inquiry, there are indicators that public opinion about water policy did change in the province and across Canada. A national Gallup Poll in June 2000 asked citizens, “How concerned are you with water quality as an issue?” A reported 68 per cent were very concerned, 25 per cent somewhat concerned, 6 not very concerned, and 2 per cent not concerned at all (Gallup 2000). Another poll indicated a majority of Canadians felt that clean drinking water should be a basic human right (Ipsos Reid 2004). Annual surveys in the past three years indicate the salience of water quality as an issue has been sustained (Royal Bank of Canada and Unilever 2010). In framing the issue and changing public opinion, the media made connections between the Walkerton tragedy and environmental policy almost immediately. The connections between the tragedy and provincial policies on the environment were also on the minds of Ontarians. An Ipsos Reid Poll in October 2000 reported 64 per cent of Ontarians thought the provincial government’s performance on the environment was very poor or fairly poor (Ipsos Reid 2000). These ideas were also strongly connected to ideas about accountability. In the months after the tragedy, Ontarians blamed local authorities. An Ipsos Reid poll in 2001 reported that 55 per cent blamed local authorities and 26 per cent blamed the Harris government. The same poll reported that 59 per cent gave the Harris government “a failing grade on overall environmental performance” (Ipsos Reid 2001). Two months after the release of Justice O’Connor’s report, an Ipsos Reid / Globe and Mail poll reported that fewer Ontarians blame local officials (44 per cent), and 10 per cent more blame the provincial government than a year earlier (Ipsos Reid 2002). Whether or not public opinion has an impact on electoral behaviour, the evidence is inconclusive. Although characterized as one of the reasons for Harris’s resignation in 2002 and the failure of his successor, Ernie Eves (Schwartz and McConnell 2009), the evidence connecting this electoral outcome to the Walkerton tragedy and inquiry is speculative. In October 2003 the Liberals under the leadership of Dalton McGuinty won the election with 46 per cent of the vote and 72 of Ontario’s 103 seats. However,

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noted by one interviewee, “I would agree that it was a discrediting of the notion put forth by the Harris government that less government is always better, but I would hesitate to say this explains the outcome of the election in 2003, as the environment did not play as much of an issue.” Another analyst has noted that “there was not a mobilization of public opinion against the government and their environmental record” (McKenzie 2004, 313) and the Conservatives had been masterful at managing the crisis of public confidence and the continued public antipathy towards the public sector (McKenzie 2004). The second area where Walkerton did have an observable impact on policy ideas was in the policy community. The inquiry was able to construct narratives around two pillars of modernism: science and law (Snider 2004), both very important sources of authority in agenda setting (Bocking 2002). The multi-barrier approach based on risk management became a central idea underpinning policy change. Source protection, while more contested, also became an important idea for policy reform – one that connected the drinking water frame to the broader environmental protection frame. Some of these ideas were also picked up by other provinces, and the multi-barrier approach was adopted by the intergovernmental committee of the Canadian Council of Ministers of the Environment, which develops national quality standards for drinking water (CCME 2004). Peter Hall has said that principled belief structures and causal ideas constitute a policy paradigm that is powerful and significant to all stages of the policy process because it is largely taken for granted and rarely subject to scrutiny as a whole (Hall 1989, 59). Table 11.3 outlines the two policy frames that are reflected in Canadian water policy and were evident in the inquiry. The human health paradigm, while questioned by some during the inquiry, was not subject to scrutiny. When examined historically and more broadly, the ideational change evident by examining water policy before and after Walkerton indicates that the inquiry played an important role in refocusing ideas on a long-standing human health “frame” which remains the dominant frame of water policy ideas in the province. For some this was a strategic alignment of ideas in the name of making progress on the environmental agenda, which is a common strategy in environmental policy (Harrison 2002; Boothe and Harrison 2009). However, for others this was problematic. As noted by one interviewee, “I disagree that framing an environmental issue as a public health issue will necessarily give you more traction.”

224  Commissions of Inquiry and Policy Change Table 11.3 Comparison of Two Water Policy Ideational Frames The human health approach

The ecosystem health approach

Anthropocentric

Eco-centric

Human control or manage the environment

Humans only one part of environment/ecosystems

Natural resources such as water primarily for human, economic use

Value of water beyond human and economic use

Science and technology seen as tools to control and improve the environment or diminish the impacts of economic development

Limited growth

Primary concern with the impact that pollution and resource depletion have on human health and welfare

Ecosystem health – more holistic concern with impact of pollution on nature and other systems

Sustainable development

Sustainable societies

Risk assessment

Precautionary principle

Managerial

Communitarian

Individual human health

Community health as part of ecosystem

Third, there is some evidence that Walkerton contributed to a broader idea shift about the role of government in society and the economy. In the context of September 2001 and on the heels of a similar water pollution outbreak in North Battleford, Saskatchewan, this ideational shift was part of a broader ideological shift and reaction to neoliberal policies that had significantly reduced the role of the state in the economy, society, and environmental policy. There was clearly some rethinking of the reforms that had been implemented under New Public Management (NPM), although the extent of this ideational shift and the role of Walkerton as a watershed moment related to NPM has been the subject of some caution (McKenzie 2004). As noted by some, the inquiry report is a liberal document, not a radical script (Snider 2004). Institutions Alan Cairns has argued that “each commission commences with a clean slate” (Cairns 1990), but as an institution of the state it is connected to other institutions of the state that do have policy histories. In order to examine policy change, “the contingent effects of institutions”

The Walkerton Inquiry and Policy Change  225

are emphasized here – “the ways in which the impacts of institutions are conditional on other variables such as ideas and interests” (Harrison 2002, 68). In this section, water policy institutions before and after Walkerton are examined with a particular focus on the decade before Walkerton. The focus is on state institutions –their mandate, capacity, and cultural aspects. By the time of the Walkerton tragedy, Canada had federal and provincial legislation, many agencies with water-related mandates, watershed institutions, special-purposes bodies, intergovernmental institutions under the Canadian Council of Ministers of the Environment (CCME), and trans-boundary institutions and agreements under the Great Lakes Water Quality Agreement and other international agreements. In addition to the evolution of legislation and bureaucratic machinery outlined above, a bureaucratic division of labour emerged during the 1970s and 1980s in which the MOE focused on water quality management in industrial and municipal systems, and the permit system related to water uses, while the Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) has primary responsibility for water uses in agriculture, and the Ministry of Natural Resources (MNR) is responsible for protection, management, and preservation of Ontario’s water supplies. Medical Officers of Health remained involved under the Environmental Protection Act and the Health Protection and Promotion Act. As outlined above, Ontario also has long-standing watershed-management institutions in the form of conservation authorities (CAs) with water mandates under the Conservation Authorities Act. In addition to these provincial and regional institutions, local governments were responsible for water supply and treatment systems. By the 1990s the point-source regulatory regime was well established for surface water and consisted of four main water policies that col­ lectively defined water policy in Ontario: Provincial Water Quality Objectives, the Municipal-Industrial Strategy for Abatement, Ontario Drinking Water Quality Objectives, and Permits to Take Water (Ontario, MOE 1994, 1999, 2000a, 2000b). Through these policies under the EPA and OWRA, the MOE implemented its legislative responsibilities through permits, licences, inspection powers, compliance orders, and fines. In terms of water quality regulation from point sources, Certificates of Approval (CofAs) formed the foundation of managing and regulating water in Ontario, while drinking water quality objectives rather than standards and regulations underpinned CofAs and the point source institutional regime (Rabe 1999; Johns 2000, 2002, 2008). Although the

226  Commissions of Inquiry and Policy Change

MOE was the lead agency in point-source water pollution management, and CAs were responsible for watershed planning, efforts to address non-point source (NPS) water issues, or polluted runoff, were much more limited (Johns 2000, 2002; Montpetit 2002). Prior to Walkerton, the province relied largely on OMAFRA to manage the largest non-point sources in the province – the agricultural industry. Agricultural waste and the negative ecological implications of farming practices were not covered directly in Ontario’s EPA but rather left to the discretion of OMAFRA under the Farm Practices Protection Act and were defined as part of agricultural policy rather than envir­ onmental policy (Montpetit and Coleman 1999, 701; Montpetit 2002). The primary instruments to address agricultural runoff as a non-point source of water pollution were best management practices (BMPs) through a small ­subsidy-based program called the Environmental Farm Plan program (OMAFRA 2000). There were no mandatory regulations to deal with runoff prior to Walkerton, and the province had only indirect, voluntary instruments to address NPS water pollution compared to other jurisdictions (Johns 2000). Ontario also had no specific legislation to protect wetlands and no scientific capacity and legislation to determine and protect significant groundwater recharge areas (McCulloch and Muldoon 1999). Overall, the state of water policy in Ontario in the 1990s is well documented. The state of the local PUC in Walkerton (Burke 2001), warnings from the environmental commissioner (Environmental Commissioner of Ontario 1999), public sector unions (OPSEU 1998), and other bureaucrats were clear (O’Connor 2002a). On a variety of fronts, environmental efforts and policy implementation were scaled back. Legislation was amended, regulations were changed, and implementation and enforcement efforts were reduced. The broader shift in environmental policy under the banner of NPM ideas towards market-based, voluntary approaches ushered in a new era in environmental policy in Canada and Ontario. These changes were very evident in the MOE. In 1988 the MOE operated thirty regional and district offices and had a budget of $412 million (Bell and Pascoe 1988). The ministry’s operating budget declined from a high in 1989/90 of $454 million to $164.8 million at the time the tragedy occurred in 1999/2000. The first wave of cuts to the MOE came under Bob Rae’s government (1990–5) when the ministry’s budget was reduced by $200 million. Between 1991/2 and 1995/6 the ministry’s budget was reduced by almost 30 per cent (Krajnc 2000). Cuts were made primarily to the capital budget, and thus there

The Walkerton Inquiry and Policy Change  227

were few impacts on the personnel and operating budgets (McKenzie 2004, 116). The second wave of cuts began after the Harris government was elected in 1995, bringing the ministry’s operating budget by 1998 to 1973/4 levels (in 1998 dollars). After adjusting for inflation, the actual decrease in the MOE budget between 1992/3 and 1998/9 was 56 per cent (Ontario, ECO 2007). Staffing levels at the MOE dropped from a high of 2,450 in 1990 to 1460 in 1999 (Ontario, MOE 1999; Krajnc 2000; Merritt and Gore 2002). The inquiry report contained similar numbers: the staff at the MOE declining from 2,306 in 1990 to 1,374 in 2000 (O’Connor 2002a). The amount of funding allocated to salaries and wages dropped 27 per cent between 1995/6 and 1999/2000, mirroring the drop in number of professional and technical staff (Molot 2001). The number of ministry staff with water-related ­responsibilities was reduced from 168 in 1995 to 71 in 1996 (Winfield and Jenish 1999). Watershed management staff were reduced from 12 to 3 in 1995/6; groundwater staff from 28 to 15 in 1995/6 (Winfield and Jenish 1999), and by 1999 only 4 of 36 conservation authorities reported having a groundwater specialist (de Loe and Kruetzwiser 2007). By 2000 the Water Policy Branch was staffed by approximately 20 people (Merritt and Gore 2002, 33). These changes were also evident in a shift away from implementation and enforcement of environmental laws, policies, and regulations. Core functions like inspections of small water works went from all 607 facilities inspected in 1990/2 to only 185 of 630 by 1999/2000 (Merritt and Gore 2002, 69). Water testing was designated as a non-core program, and in 1997 the Water and Sewage Services Improvement Act legislated the shutting down of the provincial government’s water testing labs, downloading control of water and sewage treatment plants to municipalities, eliminating funding for municipal water utilities and ending the Provincial Drinking Water Surveillance program. In addition, there was a move towards deregulation, industry self-reporting, and voluntary compliance. It is also estimated that during this period, cuts to the MOE resulted in almost $1 million in cuts to environmental groups in the province (Botts and Muldoon 2005). Although legislation and related institutions for water management were put in place some thirty years prior to Walkerton to address water pollution and ensure safe drinking water, the policy regime lagged seriously behind the increasing and multiple uses of water in the province. This lag was worsened by the decline in institutional capacity in the decade prior to the tragedy.

228  Commissions of Inquiry and Policy Change

From the outset it was clear that part of the mandate given to Justice O’Connor was to examine the role of policies and institutions in the tragedy and accountability. The inquiry was very interested in the legislation and machinery of government that managed water in the province (D’Ombrain 2002; Sancton and Janik 2002). Several commissioned papers examined the institutional history and capacity of water institutions at the federal, provincial, municipal, and First Nations levels. A central focus was on institutional capacity and failure. The inquiry put all water policy–related institutions under the microscope, and every institution with a role in water management was examined. Part 1 testimony reported the significance of capacity and cultural aspects of institutions. It revealed that legislation and bureaucratic institutions mean little without implementation, resources, and a supportive political leadership and organizational culture. One central issue was whether the downsizing and privatization policies of the Harris government contributed to the Walkerton tragedy. Justice O’Connor stated, “The reductions were initiated by the central agencies of the government, including the Management Board Secretariat, the Ministry of Finance, the Cabinet Office, and the Premier’s Office rather than from within the MOE, and they were not based on an assessment of what was required to carry out the MOE’s statutory responsibilities. Before the decision was made to significantly reduce the MOE’s budget in 1996, senior government officials, ministers, and the Cabinet received numerous warnings that the impacts could result in increased risks to the environment and human health” (O’Connor 2002a, 34–5). As a result, many of Justice O’Connor’s recommendations related to institutional change. He explicitly stated in his part 2 report, “I have approached the recommendations with a view toward using existing structures and institutions wherever those structures are able to carry out my recommendations,” and “I expect that the use of existing institutions will facilitate the adoption of these recommendations and reduce the costs of implementing them” (O’Connor 2002b, 7). No new institutional arrangements were deemed necessary to implement the recommendations. Rather, adjustments to the authority and structures of existing institutions resulted from his recommendations. Despite the capacity issues of the MOE before the Walkerton tragedy, in his part 2 report Justice O’Connor recommended that the MOE be the lead provincial agency in all aspects of providing safe drinking water, including watershed-based source protection. He recommended that the MOE be the lead agency for several new pieces of legislation.

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In his report, Justice O’Connor used a commissioned consultant’s report to estimate that implementation of the twenty-eight recommendations from part 1 would cost $100–$520 million and another $99–$280 million to implement the ninety-three recommendations from part 2 (O’Connor 2002b). Although these seem substantial, Justice O’Connor noted, “The total costs of my recommendations, including the one-time costs amortized over 10 years at 7% interest, would amount to an average of between $7 and $19 per household, per year. Comparing the average water rates with those for less essential services such as cable television, telephones, or Internet access makes this point powerfully” (O’Connor 2000b, 7). The pressure for policy change and action was significant and sustained from 2000 to 2002. Shortly after receiving the report, the Eves government announced it would implement all of the recommendations. According to the environment minister at the time, this commitment was made even before the government had reviewed the documents (Stockwell 2010). Policy change post-Walkerton is probably most tangible in institutional change in the form of new laws, regulations, programs, and capacity of institutions. Justice O’Connor did not recommend new institutional arrangements to implement the recommendations. In keeping with the multi-barrier approach and source protection as central ideas, Justice O’Connor recommended legislative change on three fronts: safe drinking water, nutrient management, and source protection. After the immediate response of changing the objectives of the quality of drinking water to regulations under Operation Clean Water, work got underway to develop new legislation. Calls for a safe drinking water act were not new in Ontario. The CELA had been calling for such legislation since the early 1990s, and the NDP government brought forward a draft drinking water act to Cabinet in 1990, which never moved forward because of costs associated with the proposed legislation (Merritt and Gore 2002, 100). It is very clear that the tragedy and inquiry provided the impetus for new legislation in this area. Once the inquiry report came out, the policy and legislative process that was already underway was modified. In 2002 the Safe Drinking Water Act was passed after broad public consultation and very little opposition. Indeed the model safe drinking water legislation tabled by the CELA during the inquiry was endorsed by many of the stakeholders and formed the foundation of the legislation. The act provides legislative authority to implement fifty of the ninety-three recommendations made

230  Commissions of Inquiry and Policy Change

in Commissioner O’Connor’s part 2 report and addresses many of the recommendations in the part 1 report – including accreditation of operating authorities, municipal drinking water systems, drinking water testing, inspections and enforcement – created a new position of chief inspector, and required an annual “State of Ontario’s Drinking Water Report” to the legislature. A totally new division was created, with three branches dedicated to water and implementing recommendations of the Walkerton Inquiry. In keeping with the recommendations on agricultural runoff, the Nutrient Management Act (NMA) was passed in June 2002, two years after Walkerton. It built on the largely voluntary system that existed prior to Walkerton by giving current best management practices the force of law, and creating comprehensive, enforceable, province-wide standards to regulate the management of all land-applied materials containing nutrients. The act established the authority of the MOE to develop regu­ lations requiring that nutrient management plans (NMPs) completed by  large livestock producers be compliant with the act (Ontario MOE 2005b). Small farms were not to be covered under the new regulations until 2008. By 2006 OMAFRA had approved 777 NMPs, which require annual updates, but the vast majority of the approximately 53,000 livestock operations in Ontario remain subject to municipal by-laws, where they exist (Ontario ECO 2006, 115). The most significant and wide-ranging policy changes related to Justice O’Connor’s recommendations for source protection. Stemming from the terms of reference, O’Connor noted, “I restrict my recommendations to those aspects of watershed management that I think are necessary to protect drinking water sources, but I want to emphasize that a comprehensive approach for managing all aspects of watersheds is needed and should be adopted by the province” (O’Connor 2002b, 9). He recommended that the province adopt a watershed-based planning process, led by the MOE and conservation authorities and involving local actors to develop a source protection plan for watersheds across the province. Although the proposed legislation related to twenty-two of ninety-three recommendations from Justice O’Connor’s part 2 report, there was much debate about the scope of this particular piece of legislation. The legislation, originally named the Source Water Protection Act, was introduced as the Clean Water Act and passed in 2006. The CWA requires the establishment of Source Protection Committees (SPCs) to oversee the development of Source Protection Plans (SPP) for watersheds (Ontario, MOE 2005a). Local communities are responsible for developing and

The Walkerton Inquiry and Policy Change  231

implementing risk management strategies. CAs were expected immediately to take on new responsibilities for SPCs, SPPs watershed management, and groundwater data collection. Between 2004 and 2007, the provincial government announced over $100 million for CAs and municipalities to implement source protection planning (Ontario, ­ MOE, 2007). In keeping with Justice O’Connor’s recommendations, a separate watershed management branch was added in the MOE under the drinking water division, clearly placing the implementation mandate of the CWA under drinking water. In addition to the legislative outcomes that are evident postWalkerton, there are also several observable impacts on the bureaucratic machinery and capacity to implement water policy in Ontario. A simple comparison of organization charts of the MOE before and after Walkerton indicates that institutional changes were significant (Johns 2008). However, Justice O’Connor explicitly stated that organizational restructuring was not enough: “It is essential for the province to strictly enforce drinking water regulations and to commit sufficient resources, financial and otherwise, to enable the MOE to play this role effectively” (O’Connor 2002b, 4). These capacity changes are most evident in the MOE in terms of budgets and personnel and to some degree in the culture and status of the ministry. It is clear in table 11.4 that Walkerton and the inquiry had a significant impact on the capacity of MOE to implement new and existing programs related to water. Budget allocations from the MOE went from an operating budget of $158 million in 1999/2000, to $242 million in 2000/1, to an estimated $348 million in 2009/10. Personnel went from a low of 1,394 in 2000 to 2,181 in 2007/8. The water program alone accounts for over 40 per cent of the ministry’s operating budget. As noted by one interviewee, “The fact that there was the inquiry probably did something to reverse the trend of funding for the MOE, and the role of the ministry was reaffirmed.” Although the MOE staff complement has increased by almost 1,000 full-time employees since Walkerton, it has still not reached the staffing levels it had in 1990–4. However, paralleling the growth in the water program operating budget, much of the staff growth has been in the water policy area. According to one official, by 2007 some 260 staff at MOE was dedicated to drinking water, of which 167 were inspectors. In terms of cultural change, the tragedy indicated failure and had an initial negative impact on the organization. “There is a culture of dedication. People tend to stay here a long time, if not their entire career.

232  Commissions of Inquiry and Policy Change Table 11.4 MOE Budget Allocations ($millions) and Personnel 2000–9 Year

Total MOE budget ($)

Water program operating ($)

Water program capital ($)

Total water program ($)

Full-time employees

2000/1 2001/2 2002/3 2003/4 2004/5 2005/6 2006/7 2007/8 2008/9 * 2009/10 *

242,578,811 237,781,982 247,965,360 256,605,782 306,959,375 273,636,222 313,510,230 349,083,496 398,022,314 367,232,514

N/A N/A 80,634,852 97,871,432 147,549,700 154,640,996 124,341,352 141,694,627 155,786,800 154,534,600

N/A N/A 10,798,911 2,982,277 5,593,400 9,186,063 25,033,561 35,735,357 16,664,000 8,071,000

N/A N/A 91,433,763 100,853,709 153,053,100 163,827,059 149,374,913 177,429,984 172,450,800 162,605,600

1,495 1,695 1,886 1,964 2,119 2,064 2,025 2,181 N/A N/A

*Only estimates 2008/9 and 2009/10. Source: Source: Budget: MOE Business Plan 2001–3; estimates with actuals 2002–8; Personnel: MOE, Business Plans 2000–3; Annual Reports 2002–4; Results-Based Plan Briefing Book 2006–9. FTE numbers exclude personnel of the Ontario Clean Water Agency, which employs another 630–707 staff.

They value their work. The impact on staff was very large. People had difficulties in terms of thinking we did something wrong. We let the system down. There was a fair amount of turmoil. As a result, staff morale is low, and there is a sense of failure and confusion about what the future holds.” Interviews with other MOE officials indicated that the ministry indeed viewed the inquiry and Justice O’Connor’s report very positively. As noted by another interviewee, “After the inquiry there was a great commitment to implementation – both politically and by officials. There was a high reinvestment in terms of water, new resources, and a new division in 2004.” Another official noted, The 121 very specific recommendations from Justice O’Connor’s report makes my job easier, in the sense that in most programs in government you have to lobby for what you believe is the right course of action and the minister has their own agenda. In this case it was an easier sell to get resources. From the perspective of someone having to execute the recommendations, it makes it easier in terms of this is the path, and working with stakeholders to come up with ways of achieving that. I do recall the minister at the time saying this is the opportunity to implement all those measures that you as a ministry believe are the right things to do protect drinking water. It was very encouraging.

The Walkerton Inquiry and Policy Change  233

However, for some, the recommendations were very prescriptive: “This did not leave a lot of freedom in terms of deviating from the recommendations … and did not leave a lot of freedom for policy officials at MOE.” Others expressed concern during the inquiry that shifting the focus of the MOE to respond to Walkerton and more on water might be to the detriment of the other policy mandates of the ministry (Merritt and Gore 2002). A study in 2003 noted that the inquiry report was being implemented on water, but a consultant’s report by Executive Resource Group (2001), independently commissioned by the Harris government after the tragedy (the Gibbons report), was being implemented in the rest of the MOE (Breckenridge 2003). The environmental commissioner also noted that beyond drinking water there was an emerging concern with environmental inaction “in almost every area of environmental management” (Ontario ECO 2006, 26) and that the inquiry had skewed the focus of the MOE too much towards water. “From that point forward, MOE’s operating budget began to recover, but much of the increase was dedicated to meeting drinking water obligations flowing from the Walkerton tragedy and the recommendations from the Inquiry. For example, MOE’s water program had expenditures of about $7 million in 1999/2000. This number grew to approximately $43 million in 2003/4 and approximately $120 million in the 2005/6 estimates. This program alone has accounted for almost all of the budget increases that the MOE has experienced in the past decade” (Ontario ECO 2007, 3). Finally, in addition to the major legislative and institutional changes noted above, there were a number of other minor and indirect institutional changes as a result of the inquiry. In 2003 the Eves government created the Ontario Clean Water Legacy Trust, and following that, the McGuinty government created the Walkerton Clean Water Centre in Walkerton to help ensure training is available and accessible to operators in rural and remote communities and to support the needs of water systems operators. The Provincial Water Quality Monitoring Network reestablished a monitoring program, and the Water Resources Information Program and the Provincial Groundwater Monitoring Network extended the monitoring and scientific capacity related to water in partnership with local actors. Reform of municipal water by-laws is also evident in municipalities across the province. Beyond Ontario, CCME and other provinces adopted a multi-barrier approach, and there is some evidence other provinces reformed drinking water policies as a result of Walkerton (CCME 2004; Hill et al. 2007, 2008). Although the inquiry report contained findings and comments about ­water in Ontario’s First Nations, and the Kashechewan tragedy in 2005

234  Commissions of Inquiry and Policy Change

raised the profile of water conditions in these communities, changes in federal water policy and institutions have not resulted from the inquiry. Actors In addition to ideas and institutions, the inquiry had some observable impact on the actors in this policy community. As outlined in chapter 2, actors include both state and societal policy “stakeholders,” some with direct influence, others with indirect and marginal influence, but all with political stakes in problem definition (Kingdon 1995, 110). Individuals, interest groups, scientists, experts, citizens, the public, and the media are broadly the societal interests. The state actors include both elected and bureaucratic officials. Prior to Walkerton, various epistemic communities, networks of scientists, professionals, bureaucrats, and interest groups made up the policy community related to water policy in the province. As outlined above, water policy history in Ontario highlights the centrality of public health officials and engineers in the early periods of water policy. Economic users of water also engrained their rights to use and abuse water in law and institutions (Sproule-Jones, Johns, and Heinmiller 2008). By the 1970s scientists, citizens, and organized environmental interests began to challenge these dominant interests and demand state action to address point sources of water pollution. A wide range of other water users became active in the 1980s and early 1990s and gained a seat at the water policy table. Environmental groups, recreational groups, anglers, hunters, agricultural organizations, academics, engineers, and scientists all had water policy agendas and a stake in water quality and quantity. A wide range of federal, provincial, municipal, and state actors with water-related mandates and vested interests had developed by this time. However, the declining federal role in water policy in the 1990s is well documented, and, as noted above, water policy actors in Ontario were on the decline in numbers and influence in the decade prior to Walkerton. Although there were many environmental groups with long-standing water agendas, there were very few water-specific groups in Ontario (Botts and Muldoon 2005; Johns 2008), and environmental interest groups became marginal actors in the policy process as Ontario and jurisdictions internationally turned to voluntary, market-based approaches. “The closing of a number of public advisory boards, like the Ontario Roundtable on Environment and Economy, the expiration of the Intervener Funding Act which provided funds for environmental

The Walkerton Inquiry and Policy Change  235

groups, and other legislative changes have had the effect of substantially reducing public participation and outside expert input in environmental decision-making” in Ontario (Krajnc 2000, 118). This period also witnessed the emergence of new private actors in water provision and testing in the province. In this context, agricultural interests were very effective at holding off expansion of water policies to address nonpoint sources of water pollution in Ontario. This all changed with the Walkerton Inquiry. From the outset Justice O’Connor made the part 1 and part 2 process inclusive and open. As he noted in 2007, it began with citizens: In Walkerton, I started the inquiry process by conducting four days of hearings with the residents of the town about the impact of the tainted water on their community, their families and their personal lives. Those affected could choose to meet with me privately, and a number did so. I will never forget sitting with families who had lost their loved ones, looking through their family photo albums, and talking about how much they missed their mother, wife or child. It was important in this town, at this time, to have a judge listen to their story. My counsel and I lived in Walkerton for the duration of the inquiry and were welcomed by the community. This acceptance within the local community was crucial to the success of the inquiry as a whole. (O’Connor 2007)

In addition to the traditional legal, bureaucratic, and academic expertise collected for COIs, the inquiry brought a wide range of stakeholders together. The structure of the inquiry called for input from individuals and groups with interests and expertise related to water in the province and beyond. Citizens from the town of Walkerton and across Ontario were welcome to make submissions and attend town hall meetings held across the province. The media coverage was extensive, particularly of the hearings in part 1 held in Walkerton. Information and communication technologies and a strategic use of the Internet made calls for participation and public submissions very easy. In terms of state actors, all provincial ministries with water-related mandates were involved. Conservation authorities took part, and municipalities found voice through the Association of Municipalities of Ontario. First Nations governments through Chiefs of Ontario were also involved. Legal experts participated in parts 1 and 2, and academic experts were involved primarily in part 2 of the inquiry through the RAP, commissioned papers process, peer review functions, and the expert

236  Commissions of Inquiry and Policy Change

meetings that brought together state actors, experts, and parties with standing to discuss eleven topics related to water policy. As outlined in table 11.5, a diverse set of social actors were represented as parties with standing received intervener funding and formally participated in parts 1 and 2, including individuals, public health organizations, industry stakeholders, agricultural groups, environmental groups, Aboriginal groups, labour unions, and water professionals. Given the large number of environmental and agricultural groups, some were asked to form coalitions for participation in the part 2 process. For the most part, stakeholders were very positive about their role in the inquiry and the legislative and policy changes that have been implemented post-Walkerton. Most would agree with Justice O’Connor who stated, “I think it is fair to say that virtually every relevant interest or perspective was represented in the inquiry process” (O’Connor 2007). However, there were some stakeholders who resisted policy change. In opposition were agriculture interests who were resistant to the idea of stricter regulation (Schwartz and McConnell 2009, 105) and did not support nutrient management and source protection policies. In addition, they did not welcome having to deal with MOE staff and preferred to work with OMAFRA. Some farmers also feared that they would be subject to municipal regulations, as many municipal councils in the aftermath of Walkerton drafted by-laws to control land use and livestock operations. There were also some industry actors who supported a private sector role in water provision and management and did not advocate some of O’Connor’s recommendations. The public-private provision debate was one of the most contested issues during the inquiry. In addition, some municipalities, particularly small municipalities, argued that regulations under the SDWA are overly prescriptive and costly. Other actors found that the inquiry provided a long-awaited policy venue for their causes. A loose alliance of interests emerged between environmental groups, citizen groups, and public sector unions who were the main proponents of regulatory reform. Environmental groups were mobilized, and the inquiry provided a renewed focus on the water agenda. The Clean Water Act tested the ability of environmental groups to push the human health and drinking water frame into the environmental policy domain. The struggle was to push for not just safer water but cleaner water as well. There is also evidence that the inquiry did result in coalition-building and an enduring realignment of these actors. In the aftermath of the CWA, the coalition of environmental groups formalized a network of

The Walkerton Inquiry and Policy Change  237 Table 11.5 Individuals, Groups, and Organizations with Standing in Part 2 of the Walkerton Inquiry ALERT/Sierra Club Coalition Association of Local Public Health Agencies Association of Municipalities of Ontario Azurix North America (Canada) Corp. Bruce-Grey-Owen Sound Health Unit Canadian Environmental Defence Fund and Pollution Probe Coalition Canadian Union of Public Employees Christian Farmers Federation of Ontario Concerned Walkerton Citizens / Canadian Environmental Law Association Conservation Ontario and the Saugeen Valley Conservation Authority Dairy Farmers of Ontario Ducks Unlimited Canada Energy Probe Research Foundation Government of Ontario (several ministries)

Grand River Conservation Authority Indian Associations Coordinating Committee of Ontario Inc. (Chiefs of Ontario) Dr Murray McQuigge Office of the Chief Coroner, Province of Ontario Ontario Cattle Feeders Association Ontario Cattlemen’s Association Ontario Farm Animal Council Ontario Farm Environmental Coalition Ontario Federation of Agriculture Ontario Medical Association Ontario Metis Aboriginal Association Ontario Municipal Water Association Ontario Pork Producers’ Board Ontario Public Service Employees Union

Ontario Society of Professional Engineers Ontario Water Works Association Professional Engineers and Architects of the Ontario Public Service Professional Engineers of Ontario Sierra Legal Defence Fund Coalition Uxbridge Conservation Association Walkerton and District Chamber of Commerce Walkerton Community Foundation

Source: O’Connor, 2002b section 16.5.3.

individuals, and environmental and citizen’s groups called the Water Guardians Network with a mission of “working together as stewards for the long-term preservation, protection and improvement of water sources across Ontario,” with goals of collectively pursuing source water ­protection, centralizing the collection of water information, promoting the precautionary principle, and advancing Great Lakes commitments (CELA 2006). Through the leadership of the CELA and Environmental Defence, the coalition developed strategies to ensure implementation, monitoring, and accountability. It served as a watchdog on implementation of the inquiry recommendations and used web portals and other media outlets to keep public attention focused on water. There has also been some strategic specialization among environmental groups that focus on specific parts of a broader water policy

238  Commissions of Inquiry and Policy Change

agenda. For example, Sierra Legal Defence has become the specialist on water quality issues related to drinking water and sewage effluent. Building on its report cards published on sewage and wastewater effluent management policies in 1994 and 1999, it published Canada’s Drinking Water Report Card in 2001 and Waterproof II in 2006 and has become an effective watchdog on these water issues. According to one interviewee, “My recollection of all the environmental stakeholders is that conservation authorities saw the greatest opportunity to pursue their agenda in terms of involvement in source water protection.” Interestingly CAs are viewed by some as non-state actors with interests more in line with environmental groups than their legislative mandate as watershed authorities. Watershed approaches clearly received legitimacy in the aftermath of Walkerton, and CAs were the beneficiaries of increased funding related to technical capacity, mobilizing local stakeholder engagement and watershed and groundwater science. Some First Nations also became mobilized around water issues as a result of the inquiry. Chiefs of Ontario joined some of the coalitions during the inquiry in submissions and had an active voice on source protection. Along with several environmental groups they advocated for an ecosystem, system-wide, watershed approach, and linking source protection to Great Lakes and broader water quality efforts. In 2008 Chiefs of Ontario developed its own water declaration (Chiefs of Ontario 2008). Despite the profile of First Nations water in the inquiry report, the Kashechewan water contamination in 2005, several reports on the state of water in First Nations and across the country (INAC and HC 2001; INAC 2003; OAG 2005a), federal actors remained at the sidelines during and after Walkerton. Regular calls for federal action and involvement on water by experts and environmental actors went unheeded, and Walkerton and the focus on drinking water seemed to reinforce the position that water was a provincial and local issue. The federal government was interested in the inquiry from a distance, and Health Canada did attend a few of the expert panels during the inquiry, but Environment Canada and other federal actors were never involved, and the federal role did not change as a result of the tragedy or inquiry. Finally, in addition to the mobilization of state actors and interest groups, there have also been some less direct impacts on actors. There has also been a growth in water science and research organizations, scholarly research on water has grown in many disciplines, the federal government created the Canadian Water Network, and several think

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tanks also developed water research projects. In addition, there have been some notable policy changes facilitated by individual relations. Relations In addition to relations between various actors above, personal attributes of key individuals and the commissioner, and informal interpersonal relations were also important, yet less tangible factors in explaining outcomes of the Walkerton Inquiry. First was the whistle-blowing role of Dr Murray McGuigge from the local public health unit who exposed the wrongdoings of the Koebel brothers and other local officials (Perkel 2002). Key local individuals helped piece together the accountability outcomes in part 1. In addition, the personal style of Justice O’Connor and his ability to run a well-managed two-part inquiry has been noted as an important factor in explaining the degree of policy change that was proposed and achieved (Stutz 2008; Schwartz and McConnell 2009; Ratushny 2009). From the outset Justice O’Connor was personally committed to ensuring that the inquiry was well run, on time, on budget, and inclusive. He was also said to be very media savvy, was committed to engagement with the citizens in Walkerton, and had a high level of political acuity. Finally, Justice O’Connor was also very strategic and used personal connections to establish his legal and expert teams. Key roles were carried out by Commission Council Paul Cavaluzo and the chair of the research advisory panel, Harry Swain. Swain was recommended by George O’Connell and recruited by Justice O’Connor as a no-nonsense, get-things-done kind of leader. Other informal relations with experts were also important, as they were with former bureaucrats such as Jim Merritt, and the special relations between Merritt, CELA lawyers, and the inquiry, according to one interviewee, were important. Relationships formed during the inquiry between stakeholders, and political and bureaucratic personnel endured during the implementation period. For example, personnel from CELA actually became political staff for the minister of the environment under the McGuinty government with a more direct role in overseeing implementation of the Clean Water Act and other water policies. Conclusion: The Walkerton Inquiry and Policy Change Walkerton was, by most accounts, a successful COI in terms of its operation and policy change. Crisis clearly played a role in triggering policy

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and regulatory change (Schwartz and McConnell 2009), so it is difficult to isolate the policy changes that occurred as a result of the tragedy from those that resulted from the inquiry. However, by examining ideas, institutions, actors, and relations before and after the inquiry, it is evident that the degree and type of policy change was significantly influenced by the inquiry. A traditional approach in the COI literature is to examine the impact and assess the significance of the inquiry for politics and policy in terms of how the its findings and recommendations were received and whether the recommendations were implemented. Measured by this yardstick, the Walkerton Inquiry has been touted by some as one of the most successful in Canadian history. The findings and all 121 recommendations made by the commissioner were accepted and implemented. Mason and Mullan identified aspects of the Walkerton Inquiry that contributed significantly to its perceived success, which they argue also serve as lessons for the future: an obvious willingness to learn from the successes and failures of previous commissions of inquiry; an awareness of the extent to which commissions of inquiry of this kind are very much surrogate forms of democratic participation; the utility in splitting the process of the inquiry into two separate but related parts; the making of an expansive view of the commission’s mandate and applying this broad view to the issues of standing, and the provision of funding to many participants in both parts of the inquiry (Mason and Mullan 2003b, 501). Others have focused on the political, economic, and administrative feasibility of the recommendations made by Justice O’Connor (Stutz 2008). This is in keeping with broader theory about the role of ideas in policy change (Hall 1993) and previous studies on COIs (Bradford 1998; Inwood 2005; Clark and Trick 2006). Others have attributed success to Justice O’Connor himself (Ratushny 2009). It is clear that the tragedy in Walkerton occurred after a period of significant stasis in water policy in Ontario and Canada. Environmental issues were very low on the agendas of federal and provincial governments, and public sector reforms under NPM and a pervasive ideology about the role of the state in economy and society and citizens ideas about water were latent. The tragedy, while not precisely predictable, was not surprising, given that Ontario had no policies on non-point source water pollution runoff, and drinking water quality was governed by objectives, not regulations. Fundamentally, the preconditions presented great scope for policy change. Although it is difficult to separate

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out the causal factors related to policy change in this case, it is clear from a comparison of the ideas, institutions, actors and relations before and after Walkerton that policy change did occur. Long-standing ideas about water policy help to assess the degree of policy change in historical perspective. The earliest public policies, legislation, and institutions related to water policy were dominated by water pollution being viewed as a human health problem that required public health and engineering solutions. Water was fundamentally viewed as a resource for industrial and domestic water uses. With environmental science and increasing public awareness about the state of water in the 1970s, some of these ideas shifted and underpinned the development of Ontario’s point source regulatory regime. In the decade prior to Walkerton, dominant public opinion was that the environment and specifically water pollution was not a significant public policy problem, water was safe, and pollution was under control. Indeed, there was a pervasive false sense of security about the state of water quality in the province. The tragedy clearly played a role in shattering these ideas. The tragedy was a classic focusing event, but a closer examination of the inquiry reveals it was more akin to a process where ideas were part of “a struggle for discursive hegemony in which actors try to secure support for their definition of reality” (Hajer 1995, 59). Ultimately, the inquiry played a role in bringing the idea of safe drinking water to the forefront of public opinion, media attention, and the water policy community. According to one interviewee, “The long-lasting legacy will be people being aware of their drinking water … certainly a greater expectation that the water will always be good and that another Walkerton will not occur.” Another interviewee noted, “In terms of Ontario and drinking water we have moved almost light years with source to tap. I think we can say we can be confident in the safety of drinking water. We all know what we need to do.” The central solutions were embodied in two central concepts: multi-barrier approach and source protection. However, “source to tap” reinforced a long-standing human health frame, and the ecosystem frame remains secondary in water policy. On the basis of the policy changes that have occurred, one might argue that the waters in Ontario are safer. Although this is difficult to state conclusively, there is clearly a perception that they are. However, one study indicated that in March 2008 there were 1766 boil water advisories in effect in Canada, including 93 in First Nations communities. Some 679 of these were issued in Ontario since 2006 (Eggertson 2008). Citing Canadian Public Health Agency data, the same article noted

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that ninety deaths per year are attributed to contaminated water (Eggertson 2008). It is therefore difficult to support the argument that waters are cleaner. In terms of institutions, an analysis before and after indicates that there has been significant institutional change as a result of the inquiry. Although there was legislation and many institutions with water policy mandates prior to Walkerton, the inquiry illuminated the importance of institutional capacity and accountability as measures of policy change. Three new pieces of legislation, amendments to several others, and new regulations and programs are directly attributable to the inquiry. While no new institutions were created as a result of the inquiry, institutional capacity has definitely been increased in the MOE, CAs, and other ministries with water-related mandates. As noted by Justice O’Connor several years after the inquiry, “In the process, I have seen how public inquiries can restore confidence and fix institutions” (O’Connor 2007). This institutional analysis also indicates policy change can be understood in terms of the interaction between the strategic conduct of actors, the context within which the inquiry was conceived, and ultimately the intended and unintended consequences (Hay 2006, 64). Several indirect institutional changes occurred in Ontario and other jurisdictions, such as modifications to legislation and regulations. It also illustrates that institutions are built on ideational foundations that exert a pathdependent effect. In terms of actors, the inquiry had an observable policy impact on the number, character, mandates, and agendas of state and non-state policy stakeholders in water policy in Ontario and beyond. The inquiry itself was a stimulus and venue for a wide range of stakeholders to analyse the water problem. For some, like CELA, the inquiry infused new life into a long-standing agenda related to water. For others, like agricultural interests, it was a struggle to maintain the status quo. Through an examination of actors and interests before and after Walkerton, it can be seen that the actors remained fundamentally the same, but the inquiry resulted in some power shifts and realignment in the policy community. As stated by Justice O’Connor, “Public inquiries present a wonderful vehicle for broad public involvement and participation in issues of public policy. Indeed, I think this is one the great strengths of the inquiry process.” In referring to Walkerton, he concluded that “the broad public participation in the process engendered great support for the conclusions and recommendations” (O’Connor 2007). Ultimately causal stories were key and linked actors to ideas, beliefs, and values, specifically

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from law and science as the social institutions charged with arbitrating disputes about causal theories (Stone 1989, 300). Legal and bureaucratic experts, public health scientists, and engineers played a key role in policy change, in keeping with the analysis of other COIs and the theoretical argument that “when issues are portrayed as technical problems rather than as social questions, experts can dominate the decision making process” (Baumgartner and Jones 1991, 1047). In addition, the public, media, and members of the elected political community did not have pre-existing conceptions about the problem and were amenable to public debate (Scheberle 1994, 75). There was an epistemic community (Haas 1992) prior to Walkerton but it was empowered and became somewhat more inclusive as a result of the inquiry. The inquiry clearly played a role in policy change. However, this chapter depicts change as more evolutionary than revolutionary (Capano 2009), somewhere between second- and third-order change (Hall 1993) when ideas, institutions, actors, and relations are considered together. Analysing the role of the inquiry itself in isolation from the exogenous shock of the tragedy is, however, very challenging, both theoretically and empirically. As noted by a former MOE official, “At the end of the day, the real measure of these [commissions of inquiry] is whether the recommendations sat on the shelf. This one probably scored about a 95 per cent in terms of something being done. It got everyone’s attention. I can’t think of one that has seen that much change taking place.” A member of the Research Advisory Panel noted, “The inquiry was successful in changing drinking water policy and raising public awareness … I would say the impact of this inquiry was greater than a lot of other commissions of inquiry.” As such, the impact of the Walkerton Inquiry on policy change was transformative and direct. The comparative analysis in chapter 13 returns to this conclusion. This chapter demonstrates that ideas, actors, institutions, and relations are important for understanding why.

12 The Goudge Inquiry: Anatomy of Success for an Inquiry to Change Policy? Lorne Sossin

Introduction This volume explores policy change resulting from public inquiries. Often, it will be ambiguous whether policy change has occurred, and murkier still whether that change can be causally connected to the calling, holding, or outcome of a public inquiry. In the case of the Inquiry into Pediatric Forensic Pathology in Ontario (the “Goudge Inquiry”), which was established by the Government of Ontario under the Public Inquiries Act on 25 April 2007 and submitted its final report in the fall of 2008, with Stephen T. Goudge of the Ontario Court of Appeal ser­ ving as commissioner, I suggest there is no ambiguity. Like five other ­commissions of inquiry studied in this book – the Royal Commission on the Status of Women, the Macdonald Commission, the Royal Com­ mission on New Reproductive Technologies, the Krever Inquiry, and the Walkerton Inquiry (see chapters 4, 6, 7, 9, and 11 respectively in this volume) – the effect of the Goudge Inquiry on policy change was transformative and direct. On virtually all measures, policy change occurred and did so as a direct consequence of – and as an express response to – the Goudge Inquiry. This is not to suggest that the resulting policy change to the fields of paediatric forensic pathology, or death investigations more broadly, or the criminal justice system even more broadly, was the optimal policy change, or that every recommendation of the inquiry was implemented. It does suggest, however, that the inquiry was held for the precise purpose of animating a change to the policy and that a series of statutory and administrative changes were enacted quickly on the heels of the Inquiry Report for the stated purpose of implementing the findings of the inquiry.

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My aim in this chapter is to explore the criteria against which policy change resulting from a commission of inquiry should be evaluated, and to apply that framework. In particular, I address the four factors that build on the themes addressed through the various contributions in this volume – ideas, institutions, actors, and relations – and I examine how each theme reveals the conditions that made the success of policy change following the Goudge Inquiry possible. This chapter is divided into two parts. In the first part, I examine the Goudge Inquiry and its context. In the second part, I consider the framework by which public inquiries should be evaluated and apply the framework to the Goudge Inquiry. Context: The Makings of the Goudge Inquiry The Goudge Inquiry was called to investigate the impact of Dr Charles Smith, who worked as a pathologist for the Hospital for Sick Children from 1981 to 2005 and served as director of the Ontario Pediatric Forensic Pathology Unit (OPFPU) from 1992. In 2005, Ontario’s chief coroner ordered a review of forty-four autopsies Smith had conducted. That outside expert report issued on 19 April 2007 cast serious doubt on the findings of Dr Smith in at least twenty cases. Following this report, there was an outcry calling for a public inquiry. In response, on 25 April 2007), the Ontario government announced a public inquiry, but with limited terms of reference. The inquiry was to focus on the twenty or so cases in which children died and criminal convictions followed.1 Although a member of the Conservative Party criticized the McGuinty Liberal government for dragging its feet on the issue, as questions about Dr Smith had been brought to the attention of the attorney general at least as early as April 2005, the fact that the government announced the inquiry just six days after the release of the chief coroner’s review meant that there was hardly any time – or need – for external pressure for this kind of measure. The Goudge Inquiry’s mandate was to conduct a systemic review and an assessment of the policies, procedures, practices, accountability and oversight mechanisms, quality control measures, and institutional arrangements of paediatric forensic pathology in Ontario from 1981 to 2001 as they relate to its practice and use in investigations and criminal proceedings. The commissioner was asked to make recommendations to address systemic failings and restore and enhance public confidence in paediatric forensic pathology in Ontario. While the notion of a “systemic

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inquiry” appears broad (especially when juxtaposed with the narrow focus of a fact-finding inquiry), the fact that the inquiry was limited to “paediatric forensic pathology” became a significant constraint. Indeed, as discussed below, the recommendations of the Goudge Inquiry exceeded this mandate in a variety of ways and addressed the entire structure of death investigations in the province rather than simply paediatric deaths. Even within the context of that expanded approach, the mandate of the Goudge Inquiry remained narrow and focused. The commission’s mandate did not include reporting on any individual cases that had been or might be subject to a criminal investigation or proceeding, nor was it part of the commission’s mandate to deal with financial compensation for the individuals and families involved unlike, for instance, the Krever Commission (see chapter 9 in this volume). The focus of the Goudge Commission, by contrast, was on identifying the failures of the death investigation system in Ontario, and recommending how that system could be improved. The commission included an ambitious research program and various “policy round tables” involving outside expertise. For example, visitors from the Australian Victorian Institute for Forensic Medicine, who discussed the rigour of the training of paediatric forensic pathologists, provided a vivid contrast with the lack of training in Canada for paediatric forensic pathologists (Cordner 2008). The commission held hearings in Toronto, though it also travelled to Northern Ontario to see first-hand the challenges facing forensic pathology in rural communities. This trip enabled the commission to better understand the disproportionate effect of the paediatric forensic pathology scandal on Aboriginal communities. Goudge’s 1,000-page final report in October 2008 found that the responsibility for wrongful convictions was shared between Dr Smith for his lack of qualifications and poor pathology work, and Ontario’s former chief coroner and his deputy, for their roles in failing to provide oversight. The Goudge Inquiry recommendations addressed all aspects of death investigations in Ontario, from increasing the number of forensic pathologists available for death investigations, to the role of digital and video technology in providing enhanced forensic pathology services to remote communities. The new accountability structures for death investigations, however, were the centrepiece of the inquiry’s recommendations. The legislation created a new oversight council, made up of experts from the medical, legal, and government communities, to oversee the

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work of the chief coroner and chief forensic pathologist and to ensure the quality of the system, in addition to a complaints committee and a provincial forensic pathology service. A new forensic pathology service was also created, with enhanced power in the hands of the chief forensic pathologist. The amended Coroners Act substantially addressed all the recommended legislative amendments outlined by the Goudge Inquiry. At the time of the legislation being introduced, Minister Bartolucci told the legislature, “Commissioner Goudge gave us the road map to a stronger, more accountable death investigation system … This legislation takes us a long way down that road” (“Ontario to Adopt Changes” 2008). In addition to the new legislation and its consequent changes, the inquiry has created significant leverage and pressure for settlements with the families and individuals who suffered as a result of these miscarriages of justice. While provincial policy has clearly been changed as a result of the Goudge Inquiry, it is important to note that the federal government, which has the exclusive jurisdiction to amend the Criminal Code, has chosen not to do so in the wake of the Goudge Inquiry (and notwithstanding other provincial wrongful conviction inquiries). As Kent Roach has observed, There is a need for a systemic audit of the degree to which the many policy recommendations made by the Canadian public inquiries have been implemented. The inquiries have been conducted by the provinces, and their impact in other provinces is uncertain. None of the inquiries have led the federal Parliament, which has exclusive jurisdiction over criminal law, to  amend the Criminal Code of Canada. One rather spectacular failure has been the federal government’s rejection of a [Criminal Cases Review Commission] CCRC model in 2002 [which would involve a new body with a mandate to conduct independent reviews of criminal convictions where there is a credible concern of a wrongful conviction]. Instead, it ­reformed its procedures for dealing with applications to the Minister of Justice to ­re-open criminal convictions, despite the fact that three inquiries (The Marshall Inquiry (the “Hickman Commission,” 1989), the Morin Inquiry (the “Kaufman Commission,” 1998), and the Sophonow Inquiry (the “Cory Commission,” 2001) had recommended an independent criminal cases review commission by 2002. Subsequent to the 2002 amendments, three other inquiries have made similar recommendations for a Canadian CCRC. (Roach 2010, 106–7)

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While the accomplishments of the Goudge Inquiry are significant, does that mean it was successful in terms of policy change? To address this question, it is necessary to explore the appropriate framework for evaluating public inquiries, and it is to this question that this analysis now turns. As many have observed, inquiries may be called for a variety of reasons (Manson and Mullan 2003a). An inquiry’s impact may be immediate (transformative and direct), or it may not be felt for years or decades (transformative but diffuse). In some cases, inquiries may lead to no change whatsoever (marginal and limited). In light of the diversity and complexity of inquiries, there are several approaches to the evaluation of public inquiries. In chapter 2 of this volume, the editors outline possible criteria for success. In considering the Goudge Inquiry, I suggest the inquiry itself was attentive to and attempted to address six criteria: 1 whether the inquiry was conducted efficiently (e.g., on time and on budget); 2 whether the inquiry reached findings that provided an answers to the affected parties; 3 whether the inquiry offered recommendations that, if adopted, would prevent or at least minimize the risk of wrongful convictions in the future; 4 whether the inquiry was conducted independently, fairly, and ­impartially; 5 whether the inquiry garnered positive media attention; and 6 whether the inquiry enhanced public confidence. While these criteria are all possible measures of success, and while the Goudge Inquiry could well be characterized as a success on the basis of at least some such criteria, this volume suggests that the most significant metric of success for a public inquiry is whether it served as a catalyst for policy change, and whether the policy change affects the chance that the situation would give rise to the recurrence of an inquiry. The distinctive feature that defines virtually all public inquiries is the government’s desire to explore an issue or a set of circumstances in a way that goes beyond fact-finding, but falls short of policymaking. This space between fact-finding and policymaking creates an opportunity to shape the debate about critical issues in ways that transcend partisanship. Inquiries may not lead to policy change overnight. They may lead

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only to a change in attitude or culture that makes policy change possible over time. If an inquiry leads to no policy change at all, whether directly or indirectly, however, it is difficult to see how such an inquiry could be seen as successful. For this reason, analysing the impact of an inquiry on subsequent policy change strikes me as the most compelling criterion by which to assess an inquiry’s success. Again, in looking at whether a public inquiry led to policy change, multiple factors should be considered. Clearly, ideas, institutions, actors, and relations all play a pivotal role in the evaluation of an inquiry’s effectiveness from the perspective of policy change. Below, I discuss the ways in which these factors interacted in the Goudge Inquiry. With respect to policy change itself, it is important to clarify how I measure the effect of an inquiry. I suggest the following three measures capture the link between public inquiries and policy change: 1 To what extent did the recommendations of the inquiry lead directly or indirectly to a change in policy adopted by government? 2 To what extent did the inquiry lead to new legislation, new ­institutions, or new regulatory structures that make the problems that led to the inquiry less likely to recur? 3 To what extent did the inquiry change the culture or underlying conditions that gave rise to the problems that led to the inquiry? In the case of the Goudge Inquiry, two of the criteria set out above have been met, while the outcome of the third remains unclear. In the third section, I elaborate on these measures in the context of the Goudge Inquiry. The Goudge Inquiry Report made 169 recommendations to the Government of Ontario (Goudge 2008). Less than a month after that report, Bill 115, the Coroners Amendment Act, 2008, was introduced on 24 October 2008. It would appear that the legislation was drafted at least in part while the inquiry was still taking place. The act included sweeping changes specifically designed to implement the Goudge Inquiry’s recommendations. These included regulatory structures, as noted above, such as a new forensic pathology service, a new register for all forensic pathologists participating in death investigations, a new oversight structure known as the Death Investigation Oversight Council, and a new accountability relationship between the chief forensic pathologist and the chief coroner in Ontario.

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How does an inquiry lead to policy change that is so swift and dramatic? At one level, the answer is simple. After an inquiry, a government may choose to implement or not to implement the inquiry’s recommendations. It may also choose to implement some recommendations and not others, or implement them in ways different from those envisioned by the commissioner. So the answer may be that an inquiry leads to policy change whenever the recommendations of the inquiry suit the direction in which the government wishes to go or otherwise are expedient for a government to implement. Yet, it is rare for a government to follow the direction of an inquiry as closely and completely as the Ontario government followed the Goudge Inquiry’s Report, and almost unprecedented for that action to take place immediately upon the conclusion of the inquiry. As outlined in chapter 1, COIs have no authority to implement their own recommendations. It is necessarily true that policy change requires government buy-in, and not simply a well-run and/or well-received public inquiry. That said, there is much an inquiry can do to create the environment in which this buy-in is more likely. For example, where a public inquiry makes recommendations that require unrealistic budgets or lack clarity or justification, it will be easier for governments to ignore them or cherry pick from inquiries to suit their own priorities. There are also aspects that affect buy-in that lie beyond the control of the inquiry. For example, in this case, no opposition party made the inquiry or its implementation a partisan issue, nor did any of the adversely affected parties seek to challenge or judicially review the inquiry. Indeed, even the Office of the Chief Coroner, whose authority over forensic pathology specifically and death investigations generally would be eroded by the adoption of the inquiry’s recommendations, embraced the need for change. The following section explores the success of the Goudge Inquiry from a policy perspective through the four sets of factors employed in this book: ideas, institutions, actors, and relations. As I discuss, each of these lenses depicts the conditions for success for this COI, but it is their cumulative impact that, in my view, accounts for the swift implementation of the report’s recommendations. Ideas Ideas always drive public inquiries, even if the idea is simply the search for the truth. In the context of policy-driven inquiry like the Goudge

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Inquiry, the role of ideas as a driving factor is heightened. In the Goudge Inquiry, the overarching idea that every party and stakeholder embraced was “modernization.” That changes were needed to the system of forensic pathology in Ontario was not questioned by the government (whether understood in terms of political leaders in Cabinet or public servant leaders in the affected ministries), by the victims of wrongful conviction, or by any institutional actor (e.g., Hospital for Sick Children, chief coroner, etc.). Not a single voice spoke up in favour of the status quo in death investigations, notwithstanding the fact that if the previous system had worked as it was intended, Dr Smith’s errors in pathology would have been uncovered much sooner, and countless wrongful convictions might have been avoided. The Goudge Inquiry built on the consensus that the structure of death investigations had to be modernized. The clear vision underlying both the fact-finding and policy aspects of the inquiry was how what had transpired could be prevented from occurring again. For this reason, the Goudge Commission embraced the idea of a “systemic review.” Unlike some public inquiries, whose fact-finding attracts far more attention and interest than their subsequent policy recommendations (the Gomery Inquiry into the sponsorship scandal in 2006 comes to mind), the policy recommendations in this inquiry could not be disentangled easily from the fact-finding. For example, one of the commissioner’s findings was that there was inadequate oversight of Dr Charles Smith while he headed the Hospital for Sick Children’s Pediatric Forensic Pathology Unit; this was tied directly to the policy recommendation for greater oversight over the chief forensic pathologist, and the creation of a Death Investigation Oversight Council, which would also hear complaints where such oversight was deficient. Another finding was that Dr Smith’s qualifications as a forensic pathologist were “woefully inadequate”; this was tied directly to the recommendation that the chief forensic pathologist establish a registry of qualified forensic pathologists that will establish educational and training requirements both for entry to and remain on the register (discussed further below). Inquiry recommendations will more likely lead to policy change where they are well justified, based on a reasoned and principled survey of the policy options. They are also more likely to lead to change where the core ideas underlying the policy change are uncontested and reflect a consensus. In the context of the Goudge Inquiry, the policy round tables allowed commission counsel and counsel for the parties to

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question experts, authors of inquiry research, and those knowledgeable about the death investigation system abroad to assist the commissioner in shaping the recommendations. This format was informal, interactive, and led to a sense that the recommendations were based on a consensus involving multiple perspectives. Institutions The institutional backdrop for the Goudge Inquiry is particularly significant. The Office of the Chief Coroner is a part of the executive branch of government, and the chief coroner is “accountable” to the minister of community safety and correctional services (CSCS), as are the police, with whom coroners interact as part of criminal investigations. Coroners and forensic pathologists also work closely with the Ministry of the Attorney General and Crown prosecutors. Coroners also perform quasi-judicial functions in the holding of coroner’s inquests. All of these functions require the coroner to make decisions independent of government interference, notwithstanding the hierarchal relationship under the pre-inquiry system between the chief coroner and the Ministry of CSCS. Death investigations are not an exact science and ultimately rest on the judgment calls made by coroners. That decisionmaking, however, must be based on science and evidence, not presumptions or politics. Much of the science comes from autopsies, which are performed by forensic pathologists, a specialized branch of the medical profession. The Goudge Inquiry found the culture of coroners and forensic pathologists too often viewed themselves as part of the apparatus of police officers and prosecutors seeking convictions rather than as an objective actor seeking not convictions but “truth.” In particular, Goudge documented the implications of a “think dirty” culture in which forensic pathologists such as Dr Smith would assume an unexplained death of a child was potentially criminal until it could proven otherwise, rather than letting the science dictate whatever conclusions could be offered. Not only did tensions emerge between the institutions involved in criminal justice engaged in death investigations, but within the Coroner’s Office as well, institutional ambiguities were seen as contributing factors to the systemic failures detailed by the Goudge Inquiry. This was part of the policy problem. Under the Coroners Act, R.S.O. 1990, c. C-37, the coroners must be physicians but need not have any particular experience in pathology, much less forensic pathology. Forensic pathologists,

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either working within the Office of the Chief Coroner or on contract from positions in hospitals, conduct autopsies and submit reports that the coroner reviews, along with other data, in order to determine cause of death. The chief forensic pathologist under the former system was not a statutory officer, but rather operated under the authority of the chief coroner; in addition, the lines of accountability between forensic pathologists and the chief forensic pathologist were murky at best. Further impeding accountability, complaints about the chief coroner went to the chief coroner. No independent oversight was envisioned under the previous system, save for the implicit oversight conducted by courts when the evidence of coroners and forensic pathologists formed part of criminal justice proceedings. Even when judicial oversight gave rise to red flags (e.g., when a judge rejected testimony from Dr Charles Smith and questioned his methodology and judgment), there was no mechanism for those red flags to be picked up by the chief coroner. In other words, it was no one’s responsibility to inform the chief coroner that a judge had just questioned the judgment of a forensic pathologist acting under the coroner’s authority in a death investigation. One of the most significant policy changes recommended by the Goudge Report and implemented in the government’s amendments to the Coroners Act dealt with institutions. The chief forensic pathologist was recognized as a statutory officer and co-equal of the chief coroner. The chief forensic pathologist was given direct accountability for all forensic pathologists through the creation of a Forensic Pathology Register, which ensured only the most qualified forensic pathologists could participate in death investigations and only if they participated in a process of quality assurance.2 The register is described as a “vital tool” for the maintenance of quality control over death investigations. The report recommends that the register identify three tiers of forensic pathologists: (1) those certified to perform autopsies in criminally suspicious cases, (2) those certified to perform autopsies in criminally suspicious paediatric cases, and (3) those certified to perform autopsies in routine cases only. Further, on the recommendation of the Goudge Inquiry, the chief coroner, and chief forensic pathologists, the Coroners Act created a Death Investigation Oversight Council, which stands between the operational management of the chief coroner and chief forensic pathologist (both officials are ex officio members of the council) on the one hand and the government on the other. This body also ensures independent investigation of complaints through a separate Complaints

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Committee so that the chief coroner is no longer in a position of investigating complaints about his or her own actions. These institutional reforms were significant. It remains too early to know how the institutional dynamics that gave rise to the miscarriages of justice under the previous scheme have been reshaped by these reforms. Actors While institutional reforms are a very common outcome of COIs, reforms to the death investigation system appear to be the most visible effect of the Goudge Inquiry. However, the inquiry was set in motion by, run by, and had its greatest impact on people. While it is beyond the scope of this brief study to explore the impact of the inquiry on the lives of the people it affected, including the compelling role played by those who were wrongfully convicted and their families, individual actors also played a significant role on the policy change brought about by the inquiry. The leadership provided by the commissioner is, of course, key in any public inquiry. Though this was his first role as a commissioner of inquiry, Justice Goudge’s prior career both in law and government and his judicial background all provided a strong foundation for his constructive approach to the inquiry. He also brought some distance from the subject area of the inquiry – his background was not in the criminal justice system and he had no prior expertise in the world of forensic pathology. The commissioner himself from the outset was focused on implementation. His recommendations were intentionally measured, realistic, and proportionate to the problems. Dr Randy Hanzlick suggested to the commissioner in his capacity as an expert that Ontario abandon the “coroner” model altogether and move to a medical examiner model, with the focus on forensic pathology–driven death investigations, as is the norm in many American jurisdictions (Hanzlick 2008). In a medical examiner model, the forensic pathologist controls the death investigation, which is expertise based. In a coroner model, the coroner is a factfinding officer, typically without any specialized expertise in forensic pathology and in some jurisdictions such as Australia will often have more of a judicial than medical background. However, such a substantial change in policy was not necessary to ensure that a scenario such as that involving Dr Smith would not recur. Further, such a change would ignore the many benefits that the coroner model had generated over

The Goudge Inquiry  255 Table 12.1 Parties Granted Standing in the Goudge Inquiry Aboriginal Legal Services of Toronto and Nishnawbe Aski-Nation Affected Families Group; the Association in Defence of the Wrongly Convicted College of Physicians and Surgeons of Ontario Criminal Lawyers’ Association Defence for Children International – Canada Dr Charles Smith Hospital for Sick Children Marco Trotta and “two individuals” Mr William Mullins-Johnson Ms Sherry Sherret-Robinson and “seven unnamed persons” Office of the Chief Coroner for Ontario Ontario Crown Attorneys’ Association Province of Ontario Source: Goudge Inquiry “Parties with Standing,” 2008.

decades of operation in Ontario. Finally, the terms of reference related specifically to paediatric forensic pathology, which would be a fragile basis on which to redesign in its entirety the model for death investigations in Ontario. The decision to recommend that the government enhance the coroner model and provide more effective oversight helped ensure the government was more likely to implement the changes recommended by the inquiry. As indicated in other chapters in this book, prior experience with COIs is an important factor that actors bring to the policy change effort. In this context, the commissioner, commission counsel, and staff all had extensive experience with prior inquiries. The commissioner, for example, had served as a junior commission counsel in the Berger Inquiry in the 1970s. Mark Sandler, one of the commission counsel, had been the lead counsel in the Guy Paul Morin Inquiry, while Linda Rothstein and Robert Centa had participated in the City of Toronto MFP Inquiry. Professor Kent Roach led the ambitious research program and had served in a similar capacity in the Ipperwash Inquiry, the Arar Inquiry, and the Air India Inquiry. In addition to lawyers, other experts played a key role, both in providing technical expertise on forensic pathology and in expertise relating to the inquiry process (e.g., Celia Denov served as a social worker retained to address the experience of families affected by the inquiry and provide services where needed) (see table 12.1). One of the key actors who led in policy change was Ontario’s chief forensic pathologist, Michael Pollanen. Pollanen had a clear vision of the role

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of forensic pathology in the death investigation (evidence based and objective) and a clear desire to modernize and reform the system (particularly through institutional reforms such as the Forensic Pathology Registry). Pollanen provided testimony to the inquiry and was also a participant in the policy round table phase (“Witnesses,” Goudge Inquiry, 2008). Another key actor in the Goudge Inquiry, of course, was Dr Charles Smith, the pathologist at the centre of the events leading to the inquiry, and the man whose inaccurate testimony was alleged to have led to the wrongful convictions of dozens of individuals. Dr Smith provided some of the most riveting moments of the inquiry, such as when he spontaneously apologized to Williams Mullin-Johnson during the proceedings. His participation itself lent significance to the inquiry, both for those directly affected by the subject matter examined and the public more broadly. The question emerging from the inquiry was not how Dr Smith was able to get so much so wrong, but rather how he was able to do this without any meaningful supervision or oversight for so long. Just as important as the actors who were present during the inquiry are the actors who were not. The people whose failure of supervision was highlighted during the inquiry were no longer in positions of authority. Thus, the acting chief coroner could participate in the policy reform discussions as a somewhat disinterested actor, not needing to defend her record and with nothing to gain from defending the record of her predecessors. Indeed, the media coverage of the report of the inquiry focused almost exclusively on Dr Smith’s conduct, as well as the lack of oversight, and even wilful blindness, from Chief Coroner James Young and Deputy Chief Coroner James Cairns; the inquiry itself was treated in general with respect and deference. The media played a key role through investigative journalism in having brought Dr Smith’s conduct to light and followed the hearings relating to the inquiry closely. Unlike other inquiries where the expense, delay, or conduct of the inquiry itself became a story (e.g., Gomery Inquiry), the media focus in the Goudge Inquiry was on the issues and information coming to light through the inquiry process. Relations The factor involving relationships played out in the Goudge setting in ways that are far from typical. Because the terms of reference for the inquiry were systemic and policy based, the inquiry was not marked by

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an adversarial quality, and indeed it remains remarkable for the relative absence of judicial reviews challenging actions or findings of the commissioner. In my view, this dynamic owed much to the personal style and approach of Justice Goudge and his commission counsel. As in the other inquiries that are examined in this volume such as the Macdonald Commission and the Royal Commission on Aboriginal Peoples (see chapters 6 and 8 respectively in this volume), the relationship between the Goudge Inquiry and the government was collaborative, as the government was clearly reform-oriented and picked a commissioner with a similar mindset. Indeed, there is no way the sweeping amendments to the Coroners Act could have been introduced on 23 October 2008, just three weeks after the Goudge Inquiry Report was issued, unless significant portions of decision-making and drafting were already well underway beforehand. A further dimension of the relationship with government that led to policy change so quickly in the wake of the Goudge Inquiry was political will. The Smith scandal rocked the credibility of the criminal justice and death investigation system, and it was clear that the government had to do something to fix the problems that the inquiry brought to light. Further, the same government that called the inquiry remained in power at the time when the inquiry report was issued. The government’s commitment to implement the recommendations of the inquiry report met with no significant opposition from other political parties or organized interest groups. Often, given the time lag in establishing and holding a public inquiry, it is a new government that is given recommendations from an inquiry called by an old government. As Ed Ratushny has observed, the decision to establish a public inquiry is inherently political (Ratushny 2009, 105). It may take the heat off a government that is under strong attack, especially when critics demand a full inquiry. Once that demand is met, those critics are bound to wait for the inquiry’s report before expecting a further government response. But during the hearings and in the final report, the government loses control of the information made public and how it is expressed, and both the proceedings and findings may reflect badly on the government. What is even more remarkable is that a similar collaborative approach was adopted for the most part with counsel for the parties with standing. The lawyers worked together on agreed statements of fact, and both commission counsel and lawyers for the parties had the opportunity to question experts during policy round tables.

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The Goudge Inquiry also worked early to establish a relationship with wrongfully convicted people and their families. The commissioner met individually with the families, and the inquiry made counsellors and other professionals available to address their needs. These multiple relationships – with the government, with the parties who received standing, and with the individuals and families at the centre of the inquiry – facilitated the likelihood of policy change, each in different ways. Most important, in my view, is the absence of any force that saw the inquiry in adversarial terms. Certainly other aspects of the Goudge Inquiry, in my view, created an environment that made policy change far more likely. Some could have had a tangible impact on the government response of major legislation implementing the inquiry’s recommendations within one month of submitting the final report. For example, the Goudge Inquiry was completed within the time frame and budget contemplated, which, while not connected to the merits of policy recommendations, can contribute to an environment of government goodwill towards the inquiry and the judgment of those involved with the inquiry. While the Goudge Inquiry’s impact appears clear, it is open to question whether some of the recommendations implemented would have been undertaken by government even in the absence of the inquiry. Certainly, the method of oversight over the pathologists such as Dr Smith would have been changed, even had the inquiry never been called. It is fair to conclude, however, that the identification of the flaws in the previous scheme, and the scope of the changes owed more to the Goudge Inquiry than to the government’s own preferred policy direction. While the impact of the Goudge Inquiry on policy change in this sense is direct and tangible, it is premature to conclude whether the Goudge Inquiry has succeeded in policy change that makes the situation that gave rise to the Inquiry less likely to recur. While oversight over death investigation is in place that was not in place at the time of Dr Smith’s damaging testimony that contributed to wrongful convictions, evidence of change in the culture of criminal justice investigations generally, and of police and prosecutors specifically, remains largely speculative. The ideational and culture change within forensic pathologists and coroners appears palpable. From a “think dirty” mantra during the years that created the problems addressed in the Goudge Inquiry (in which the death of a child was approached as a potential crime until accidental death could be established), the new mantra is “objective, evidence-based science.” In addition, judicial education initiatives have

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focused on how the courts can avoid miscarriages of justice due to reliance on faulty scientific evidence. That said, the potential for faulty science to lead to miscarriages of justice remains an ongoing concern. However, for the circumstances that gave rise to the Goudge Inquiry to be changed, the entire criminal justice system needs to grapple with the challenges of the legal interpretation of scientific evidence generally and the treatment of forensic pathology specifically. The Goudge Inquiry created a range of ripple effects (e.g., enhanced training in courtroom dynamics for forensic pathologists and enhanced training in forensic pathology for judges), but it will take time to understand the implications of these changes. The unanswered question from the Goudge Inquiry remains whether oversight structures and quality control measures can prevent a rogue pathologist from undermining the integrity of the criminal justice process. Conclusion In this chapter, I have suggested that the proper lens through which to view the success of public inquiries in policy change is to analyse whether and to what extent a public inquiry served as a catalyst for policy change. Examining the Goudge Inquiry from this perspective suggests that it will be at the more successful end of the spectrum, in that it leads to transformative and direct change. While political motivations play a significant role in whether the recommendations of inquiries become a springboard to changes in public policy, the Goudge Inquiry also demonstrates that inquiries may themselves determine the likelihood of policy change. In other words, casting the Goudge Inquiry as a “systemic inquiry” focused its efforts on policy change (and away from the more narrow mandate of fact finding). Having done so, the government was perceived as committing itself to a change in policy. I have explored the way in which ideas, institutions, actors, and relations each shaped the success of the Goudge Inquiry and interacted with one another. For example, by examining relations, the constructive relationship between the government and the commission on the one hand and families of those affected by Dr Smith and the commission on the other might not have been possible with a different commissioner and might have led to different outcomes. While the verdict remains out as to whether the Goudge Inquiry will avoid future miscarriages of justice, I believe that it serves as an example of a successful inquiry from the perspective of policy change. The

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inquiry also, significantly, shed light on the darkness endured by many families of children who died and those wrongfully convicted of crimes. It provided a catalyst for modernizing the system of death investigations in Ontario. As the Goudge Inquiry demonstrates, even the most successful inquiry is at best a point of departure rather than a destination for policy change. NOTES 1 The inquiry was called in response to a range of serious concerns raised about criminal convictions secured on the basis of Dr Charles Smith’s testimony, which had been the subject of a CTV W5 investigation. There were also separate civil actions and administrative complaints relating to Dr Smith’s testimony. This scrutiny, in addition to an internal examination of Dr Smith’s work, led the chief coroner to take the unusual step in 2005 of retaining an outside panel to review Dr Smith’s major cases. 2 Goudge Report, 81. Appendix “A” to this paper sets out the four recommendations (43, 44, 45, and 46) of the report dealing with the register.

13 Commissions of Inquiry and Policy Change: A Comparative Analysis Gregory J. Inwood and Carolyn M. Johns

Speaking of several broad policy advisory inquiries, Bradford concludes, “Indeed, the intellectual achievements of Canada’s royal commissions on everything have been impressive. But the achievement is more than just intellectual; in writing histories for their times, these commissions became authors of significant policy change” (Bradford 1999/2000, 141). Similarly, Ratushny concludes that particular inquiries have played a major role in policy change throughout Canadian history (Ratushny 2009).This volume has tried to gain a deeper and richer understanding of some of the key features of COIs that determine the degree of policy change that flows from them. Comparing across COIs highlights the wide range of influence COIs have on policy change. Indeed the cases reveal that some policy change is intentional and anticipated and other change is neither. It also confirms that defining, observing, and understanding policy change is a challenging endeavour, given the dynamism and multidimensionality of policy. Capano and Howlett acknowledge the inherent challenges of “causal complexity” in conceptualizing policy change and conclude that “simplicity and parsimony are impossible to attain when describing and explaining the complex, multidimensional world of policy change” (Capano and Howlett 2009, 9). They argue that “the traditional incremental/radical, evolutionary/revolutionary, marginal/paradigmatic antitheses are of little use if we are to achieve a significant, convincing analysis of policy change” (8). Clearly the complexity, dynamism, and multidimensionality of policy change are central to analysing policy change over time. The exploration in this book starts from this fundamental assumption. All contributors begin with a neo-institutionalist foundation, yet place emphasis on different dimensions of the policy process in analysing COIs

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and policy change. They all acknowledge that history is important, particularly in terms of previous ideas, institutions, actors, and relations and the context in which a given COI is embedded. Moreover, the cases reveal that the policy process is uncertain; policy change involves transformation of several dimensions on various levels, at different paces, and in different forms. Sometimes policy changes are evident shortly after and are attributable to a COI. In some instances some degree of policy change would have likely occurred without the COI but was propelled or deepened by the COI. Sometimes policy change occurs over decades, is diffused and evolutionary, but still traceable to the COI. But in other instances, the status quo is legitimized and no or little policy change is attributable to the COI. For those looking for parsimony, this is unsatisfactory. Nonetheless, we argue comparative analysis helps uncover these complexities and advances knowledge of both COIs and policy change. In this chapter we begin with a detailed probing and comparative analysis of each case across ideas, institutions, actors, and relations in order to tease out how these factors drive and determine the degree of policy change. Finally, we revisit our three key questions: What role do COIs play in policy change? Would policy change likely have occurred without the COI? Why do some COIs result in policy change and others do not? Ideas As outlined in chapters 1 and 2, we assume COIs are established within the context of a set of pre-existing ideas. They take those ideas, weigh them against contending ideas, and determine which ought to infuse future policy choices. COIs can lend legitimacy to existing ideas or confer new ideas with the imprimatur of the COI. The impact of this process on policy change is in some cases difficult to discern, but nonetheless important. Within given policy areas, various symbols and concepts provide shared definitions of reality; there is often contestation over the perceived legitimacy of certain views in the context of policy shortcomings or failure. Old and new ideas are circulated through a given COI. Those who seek to achieve significant reform or even radical change must challenge the dominant ideas and discourse and gain legitimacy for alternatives through the COI. The cases in this book illustrate that this can occur in a number of COI-based venues: in the drafting of the mandate of a COI, within the circle of commissioners and their staff,

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and within the research program and/or through the public hearings. Eventually, a dominant discourse is established that favours the interests of particular social actors who use it to argue for policy change and to gain broader acceptance by the public and political elite. Our case studies indicate that COIs present a unique context in which to examine how ideas are debated, framed, and contested, and many highlight the centrality of ideas for policy change. The lessons of the Gordon Commission detailed by Neil Bradford in chapter 3 concerning ideas is instructive. The Gordon Commission’s importance for policy change resides in its structuring of post-war Canada’s national economic policy discussion; it essentially set the substantive terms of debate between the liberal continentalist and the interventionist nationalist schools of thought. It did so amidst an apparent poverty of policy ideas within government, which motivated Gordon to push for the COI. In short, the key idea of this COI was to come up with ideas. As Bradford suggests, the result was a set of conceptual breakthroughs that had a lasting and profound effect on the ongoing debate about Canada’s economic prospects for a generation or more. However, the opening up of new ideas and two contending idea sets also militated against easy policy change by the government as a direct result of this COI. Gordon failed to produce an ideational consensus on a readily accessible policy prescription the government could latch onto. But it certainly framed ideational policy debate for the next twenty years or more that would subsequently become central in several other inquiries, including the Macdonald Commission. Joan Grace’s survey in chapter 4 of the Royal Commission on the Status of Women (RCSW) also reveals the critical role ideas played in both the context of the COI and the COI itself. Specifically, she notes, the RCSW gave voice to ideas derived from liberal human rights discourse linked to feminism and the emergent second wave of the women’s movement. For perhaps the first time, a major and respected public institution legitimized previously marginalized and contentious ideas about women, including most particularly feminist ideas – radical, socialist, and liberal alike – that were just gaining credence. New critical ideas about the plight of women and dominant social and stereotypical conceptions were lent credibility. Coinciding with the social liberalism of the “Just Society” ideas in the early Trudeau years, feminism was increasingly viewed with legitimacy by governments. Despite some shortcomings, including most importantly that the ideational framework of the RCSW was clearly cast in terms of liberal human rights but did not

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examine gendered power relations or systems of patriarchy, the RCSW generated an ideational impact on important subsequent policy change. In chapter 5 on the Berger Inquiry, Frances Abele outlines a serious gap between the ideas about northern development held by the North’s permanent, Indigenous residents, and those by the rest of Canada and the Canadian political elite. This ideational gap was brought into focus by the COI and nicely captured in the title of the final report, Northern Frontier, Northern Homeland. The articulation of contending ideas about legitimate forms of northern development proved to be very important. It framed virtually all subsequent ideas about northern development and influenced policy for many years afterwards. Moreover, a great many other ideas received a hearing through this COI, adding to the diversity of policy choices confronting governments. In Berger’s case a  new description of the core policy problem, generated through the inquiry itself, permitted it to go beyond the limitations of its original mandate. This indicates that the terms of reference are not the sole place to look for the ideational scope of a COI. Like the Gordon Commission before it, the Macdonald Commission served as a laboratory where contending ideas about economic development could be articulated and debated. As Gregory Inwood details in chapter 6, central ideational values around free markets and the role of the state in the economy found expression in this COI. The COI played a key role in privileging one set of ideas (the free market) over those of the other (the interventionist state). Neoconservative continentalism trumped social democratic nationalism, at least insofar as the Mulroney government’s policy choice to embrace free trade (and other measures regarding social policy) indicates. This COI’s ideas, therefore, had a very direct impact on policy change. The prescriptive solutions supplied by the Macdonald Commission differed from those found in the Gordon Commission in that the former aligned with an emerging ideational frame advanced by leading political, bureaucratic, academic, and business actors, while the latter divided these groups in seeking policy change. The case of the Royal Commission on New Reproductive Technologies (RCNRT) assessed by Francesca Scala in chapter 7 clearly illustrates how contestation over ideas can be a central tenet of COIs; and like the Gordon, Macdonald, and Krever COIs, it also shows how ideas are ­connected to actors. In this case, Scala refers to the centrality of the COI in issue expansion, broadening the debate about new reproductive technologies. Similar to other COIs, “formative decisions” framed the official

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discourse. Also like the Gordon and Macdonald COIs, the RCNRT inquiry highlights the centrality of the research program in shaping ideas as medical, legal, and scientific actors’ ideas became dominant in the RCNRT. Certain other non-scientific ideas were marginalized by limiting the receipt of expertise from social sciences, sociology, philosophy, religion, and actors from women’s groups critical of new reproductive technologies. This case also places the media front and centre in “normalizing” notions of new reproductive technologies as scientific and technological progress, thereby reinforcing dominant ideas. The emergence of “evidence-based” ideas as superior to qualitative feminist ideas clearly indicated a hierarchy of ideas reflected in the final report and recommendations of this COI. This case also shows awareness of the early 1990s idea of fiscal restraint and a focus on debt, deficits, and mi­nimizing the role of the state, as was also evident in the Macdonald Commission and the Walkerton Inquiry. Those who advocated for more active government involvement to change policy in this area were up against powerful political-economic ideas that surrounded the COI. As Scala notes, the potential to broaden the ideas and challenge the authoritative cognitive map of scientific and political-economic ideas in this policy area was not realized. This hierarchy of ideas is a common finding across several COIs. Peter Russell shows in chapter 8 that the main impact of the Royal Commission on Aboriginal Peoples (RCAP) was an educative one for the country as a whole, rather than one that led to direct policy change. In this case, the idea that “Aboriginal policy” was based solely on decisions of the Government of Canada gave way to the idea that it should be the result of interaction between Aboriginal governments and other governments in Canada. Legitimizing ideas about this relationship was one of the most important developments to emerge from this COI. But actual, significant policy change was not forthcoming. As with the Gordon Commission, RCAP is an interesting example where the influence of ideas over the longer term is probably more important than the embrace of concrete policy prescriptions in the short term. More than fifteen years later, the ideas in the RCAP report are cited as forward-looking and important for possible future policy change. In contrast to the policy theory that “ideas whose time has come” are important, this case illustrates that ideas whose time has not yet come may be equally important. Analysing policy change may require longer time frames than policy theory suggests.

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In the case of the Krever Commission Michael Orsini argues in chapter 9 that, as with RCNRT, debates about ideas were framed as debates about evidence. In this case, the precautionary principle and risk became central to the debate within the COI. Some new ideas such as nofault compensation were adopted and reflected in recommendations, although not in subsequent policy change. Others such as the precautionary principle were not influential in shifting the policy focus. This may indicate a classic policy challenge of moving from policies based on prevention to those based on reaction. Orsini also argues that ideational debates can best be understood when linked to actors. In this case the ideational tension between redistribution (in the form of compensation) and recognition (in the form of new ideas) was very evident. Two competing ideas about two different struggles within the COI ultimately resulted in an identity crisis or a kind of ideational gridlock. Orsini argues that ideas are bound up with COIs as venues for articulation of identities and interests; thus the representational and democratic roles of COIs can be central in understanding the degree of policy change. These findings echo those in the Gordon, RCSW, Berger, Macdonald, and RCNRT COIs. In chapter 10, Patricia O’Reilly’s analysis of the Romanow Commission indicates that changing dominant ideas about the publicly funded accessible health care system was not central to the mandate nor reflected in its recommendations. As O’Reilly indicates, the dominant ideas were not open for full examination or public discussion. Like other COIs on health policy around the same time, Romanow tried to gauge opinion about the dominant ideas held by both policy elites and the public. It was clear that the public was content with the central idea of universally accessible, publicly funded health care services. But patient access to health care, quality care, and sustainability were important concerns. However, the ideational shift required to change the current system was another question. Certain ideas were off-limits, reflected in the fact that there were no “medicare dissenters” on the COI. The real driving ideas – including long-term funding, patient access, accountability for money spent, improved intergovernmental collaboration, and overall reform to the health care system – were reflected through the prism of federalism. Some jurisdictions were engaged in an ideational debate over the health care system at the provincial level, as reflected in COIs on health care reform in Alberta, Saskatchewan, and Quebec, but the national COI held a fundamental idea set and did not wish to engage in this ideational battle. Ideas such as accountability, taking more personal responsibility

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for staying healthy, and using the system prudently were discussed and reflected in recommendations of the Romanow Commission. But the recommendation for a covenant embodying these new ideas was not adopted. Ultimately O’Reilly concludes that there was no significant shift in thinking and therefore no significant policy change flowing from the Romanow Commission. In the case of the Walkerton Inquiry detailed in chapter 11 by Carolyn Johns, the ideational scope was determined even before the COI was created. Essentially, the terms of reference were drafted by the media coverage of the shocking human tragedies faced by the people of Walkerton from simply drinking water. As with the Krever and Goudge COIs, a crisis served as a classic “focusing event” resulting in concentration on a dominant definition of the problem. Although understood as both a problem of human error and misconduct and a systemic governance problem, the issue was defined from the outset as a drinking water tragedy and not something broader. Early on an ideational struggle was evident, as some actors pushed for the COI to be an environmental inquiry about pollution and ecosystem health rather than one focused more narrowly on human health. The contestation over these ideas is clearly present and related to key concepts like the precautionary principle and risk assessment. Similar to the Krever, RCNRT, and Goudge COIs, the alignment of ideas with certain actors is also clearly evident. The role of the research program and expert evidence is also key to understanding the role of ideas in this case, as with the Gordon, Macdonald, and RCNRT COIs. In addition, ideas on the role of the state in protecting the environment, regulation, and privatisation were key debates in this COI. They were also embedded in the broader politicaleconomic context. Focusing on the more narrow set of ideas, however, did result in significant and direct post-inquiry policy change. Similar to the Goudge Inquiry, there was a basic set of ideas, including the ­central goal of safe drinking water, that all actors, the public, interest groups, and the media agreed on, making it easy for the government to make policy change. In the Goudge Inquiry, significant ideational consensus contributed to more direct, determinate policy change. Lorne Sossin outlines in chapter 12 how the overarching idea of “modernization” of death investigations was embraced by all stakeholders and the government. Like in Walkerton, there was wide-ranging public acceptance of the ideas solidified by the COI and no advocate for the ideas underpinning the existing policy regime. Sossin argues that the integration of fact-finding

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and policy aspects of the inquiry reinforced the idea of systemic review and resulted in agreement that the current ideas were unsatisfactory. This connection between fact-finding policy evidence and recommendations was a key combination that ultimately resulted in policy change flowing directly from the COI. Sossin argues that the role of ideas as a driving force in policy change is heightened when a COI is injected into the typical policy process. It is clear from this comparative analysis that ideas are central to understanding policy change attributable to a COI. This is consistent with much scholarly analysis. Understanding the dominant policy ideas prior to the COI, the state of public opinion, and the alignment of ideas with various policy actors is critical for gaining a full picture of the role that ideas play in policy change before and after a COI. Our comparative analysis across these cases confirms the significance of ideas evident in previous scholarly literature. But it also suggests that ideas alone cannot be the focus, since they do not ensure that policy change flows from every COI. Rather, they must be examined alongside other factors. This is very much in keeping with the current emphasis in endogenous theories of policy change that focus on the role of individual and group actors in articulating and championing certain ideas. The policy microcosm of the COI makes these settings an ideal place to examine the role of ideas in policy change. However, it is also clear from these cases that the broader ideational context is important. Some congruence of ideas coming out of a COI with the political, economic, and social ideas of the time is also important. In many of the cases where policy change was evident and directly attributable to the COI, there was consensus that an ideational shift was required and that policy and institutional failures or shortcomings must be addressed. However, in other cases there was no ideational consensus, yet significant policy change resulted. The extent to which a COI reflects or challenges a dominant discourse and the ideas behind it does not seem to explain policy change. Some of our cases, like Goudge, simply reinforced a widely held perception – in this case, that death inquiry methodologies were deeply problematic and needed reform – while Krever confirmed the inadequacies of the blood system, and Walkerton centred on the idea that safe drinking water was a widely shared policy idea and therefore central to changes in government policy. Romanow shows, not surprisingly, that when the ideational status quo is largely supported, there are fewer prospects for policy change. Other COIs, though, deeply challenged a prevailing set of ideas, including Macdonald, RCSW, and RCNRT, and resulted in

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policy change. In the case of Macdonald, establishing the idea that there was a “crisis” in the economy and drawing on a limited discourse to analyse the nature of that crisis allowed it to reframe and limit possible policy choices. The RCSW propounded the idea of the equality of women and reframed policy choices by broadening the scope of governmental concerns to include women’s perspectives and ideas about their own lived experiences. These ideas were essentially congruent with ideational shifts exogenous to the COI, making policy change more likely. The RCNRT created a space for issue expansion and for broadening the ­debate about new reproductive technologies. Berger also used ideas to reframe the issue, invoking a notion of participatory engagement by previously marginalized communities and individuals, but its impact was diffused. It is clear that in each of the cases, by trying to identify and isolate key ideas before and after a given COI, analysis of policy change needs to include an explicit examination of ideas. However, comparative analysis lends some credence to the approach of discursive institutionalists (see chapter 2) – ideas are interconnected with institutions and policy actors, as well as relations. We now turn to a comparative analysis of the institutional features of our COIs and policy institutions before and after a COI. Institutions The cases in this analysis indicate that the very creation of a COI implies some sort of failure or shortcoming of the regular institutions responsible for policy change. Traditional institutional parameters of policymaking sometimes are insufficient, and resorting to an arm’s-length institutional forum can be required to assess existing policy as well as recommend policy changes. As outlined in chapter 2, COIs are conceptualized as temporary institutions embedded in a more permanent, durable set of institutions. Thus historical institutionalism is a common foundation for the cases in this book. What is of interest here are three dimensions of policy change: the capacity of traditional institutions to effect policy change; institutional features of a COI that contribute to policy change; and how COIs as temporary institutions embedded in the broader institutional context contribute to policy change. In keeping with the scholarship on COIs, we characterized COIs in chapter 1 as either policy advisory or investigative in their mandate, structures, functions, and institutional features.

270  Commissions of Inquiry and Policy Change

The scholarly literature indicates that this distinction is important in understanding the influence of COIs on policy change, and hypothesizes that investigatory COIs tend to produce policy change more so than policy advisory COIs. After presenting a comparative analysis of institutions and policy change across our ten cases, we revisit this question to determine if there is evidence that this distinction matters in policy change. In the Gordon Commission, traditional institutions of governance appeared bereft of new policy and lacking initiative to tackle emerging challenges, as was the case with the Macdonald Commission. A traditional institutional model of a few commissioners (three, in this case), a research program, and public hearings were chosen for the Gordon Commission, which was a policy advisory COI. The domination of the chair and the influence of academics within the research program were key elements in the output of the COI. But the wooliness of the Gordon Report made it hard for the traditional institutions of government to know what to do, either in policy or reformation of their own structures to accommodate new thinking. Hence neither the internal features of this COI nor its ultimate recommendations had discernible impact on the institutions within government, beyond an infusion of new talent (see actors below), which energized traditionally more moribund places like the Department of Finance and of Industry, Trade and Commerce. As Bradford points out, however, outside government, emerging think tanks took up the ideational struggle articulated by the COI, and political parties engaged in an internal examination of economic policy choices influenced by the debates launched by Gordon. In the decades that followed, more think tanks began to appear, and what became known as the “policy analysis movement took shape with a proliferation of policy analysis and research capabilities in agencies across government” (Lindquist 2006, 3). This highlights the growth in policy institutions and further rounds of introspection through COIs, as several such bodies followed in the wake of Gordon. But how far new policy institutions such as think tanks supplanted COIs as time went on deserves further research. As we noted in chapter 1, the proliferation of think thanks, policy centres in universities, and policy analysis units in government departments and agencies coincided with a diminished resort to COIs in the late twentieth and early twenty-first centuries. The RCSW contained a profoundly significant institutional feature that no previous COI had in Canadian history – it was headed by a ­ woman. Otherwise it conformed to a traditional model of most policy

A Comparative Analysis  271

advisory COIs, with several commissioners, a research program, and public hearings. But the hearings proved to be perhaps more significant than in many other COIs, as Grace shows. The array of regular governing institutions in Canada up to the 1960s was typically closed to broadbased participation by women. Moreover, progressive political change as represented and articulated by the emerging women’s movement had no real place in Canada’s governing institutions. For example, Judy LaMarsh was the sole woman Cabinet minister in Lester Pearson’s government. The lack of institutions dedicated to women’s policy to act as inside allies to advocate for women represented a real structural barrier to their advancement and became a focus of the RCSW. As with the Walkerton and Goudge Inquiries, this case highlights the fact that the state of existing institutions is also important for understanding policy and institutional change following a COI. In this case, it was not just the state of domestic institutions that mattered. Canada had ratified the International Labour Organization Convention in 1964, committing the federal government to promoting equal opportunity and treatment in employment. Moreover, Canada was increasingly seen as a laggard after the Kennedy administration in the United States established the Presidential Commission on the Status of Women in December 1961. The lack of institutionalization of women’s interests and scope for institutional reform in this case made policy changes more likely. However, to expect policy change under these circumstances was to rely on the largesse of male policymakers largely uninformed or uninterested in issues concerning women. Nonetheless, the impact of the RCSW on policy change insofar as institutions are concerned was ­profound, if incomplete. New agencies within the administrative state were created, internal bureaucratic practices were altered, and women’s interests that were articulated in gender terms were increasingly institutionalized. Moreover, an understanding of women’s socio-economic situations was systematically incorporated into the public service for the first time. The National Action Committee on the Status of Women was originally created to monitor the implementation of the RCSW’s recommendations, and a new institutional terrain for women was created. For instance, the RCSW paved the way for the insertion of equality clauses in the Charter of Rights and Freedoms. This represents indirect but deep institutional change, in the form of constitutional reform. The prospect for institutional change also transcended federal-provincial-territorial jurisdictional issues, resulting in institutional change at other levels of government. In part this can also be attributed to the RCSW.

272  Commissions of Inquiry and Policy Change

Among the most important changes attributed to the Berger Inquiry was an important innovation in the way COIs were conducted. A single chairperson, a modest research program, and an ambitious public hearings process characterized this policy advisory COI. But institutional innovation within the COI contributed to policy change through some institutional change outside the COI. The Berger Inquiry helped legitimize intervener funding programs for COIs and changed the policy process more than policy goals, instruments, and bureaucratic institutions. The innovations of simultaneous Indigenous languages interpretation and the taking of COIs directly to affected communities were incorporated into later COIs, programs, and institutions. But policy change per se was limited. The Macdonald Commission stands out institutionally in its sheer size. It was designed as the largest COI in Canadian history, with the largest budget, a record 13 commissioners, the largest research and public hearings program to date, and a series of closed, private meetings between some commissioners and representatives of the business communities and academics. The sheer size of this policy advisory COI had a limiting impact on its effectiveness, though not a fatal one. It was a tremendously complex exercise. But despite the participation of a cast of thousands, a small oligarchy produced a final report and recommendations. This implies that, institutionally at least, perhaps size does not matter if the actual product of a COI is really the work of a small group like those in more modestly sized COIs. In policy change, the direct and lasting impact of the Macdonald Commission was not so much on federal or provincial government institutions directly as on continental ones. While the Macdonald Commission recommendations on Senate reform and changes to federalism were later debated exhaustively, they were not adopted. But its economic recommendation for free trade, of course, was adopted rapidly, and this policy change would not have occurred in the form it did without this COI. As no less than Ronald Reagan put it, the Free Trade Agreement represented the new economic constitution of North America. Within the federal government bureaucracy, indirectly, the COI contributed to the ascendance of the Department of Foreign Affairs and International Trade and a decades-long search for the appropriate bureaucratic structures to facilitate free trade both with the United States and, later, with other countries as well. The RCNRT was another large policy advisory COI with seven commissioners assisted by a research program and public hearings. Conflict

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among the commissioners revealed the obvious: reproductive technologies was a highly contentious issue. As Scala showed, the RCNRT research program was dominated by those who embraced a medical and scientific definition of the policy problems, to the exclusion of other models; this served as fuel for contention within the COI and outside of it. Some institutional change resulted from the RCNRT, in part reflecting the dominance of this view. Indeed, medical and scientific advisory committees were central to policy development prior to the COI. As Scala outlines, democratic engagement in science and technology policy was closed and a model of professional self-regulation existed. The degree of policy change therefore must be understood in this pre-existing institutional context. The institutions of federalism were also at play, given the province’s jurisdiction over health care and the federal government’s over safety and health matters of national interest. Interprovincial disparities in licensing and regulatory requirements were used as a basis for arguing under the federal power of “peace, order, and good government” for more federal involvement and institutional change. The creation of a national regulatory agency, the National Commission on Reproductive Technologies, was a tangible institutional innovation resulting from this COI. The RCNRT also used the institutional clout of the Charter of Rights and Freedoms to argue against discrimination related to new reproductive technologies. Scala also points out that the RCSW created an institutional and policy legacy that continues to have implications for new reproductive technology policy. As with the RCSW innovation of appointing the first woman chair of a COI, RCAP also included a key institutional innovation: Aboriginal commissioners, a first in Canadian history. A massive research program that combined Western social science with traditional Aboriginal approaches was also an innovation, along with public hearings that incorporated a measure of Aboriginal traditions. In several ways, then, this policy advisory COI deviated from the traditional institutional COI model. Nevertheless, RCAP’s influence on policy change and the traditional institutions of Canadian governance was very limited. No cons­ titutional, legal, or significant changes to policy instruments or the bureaucratic machinery of government followed this COI. A new royal proclamation was called for but was not developed, and hence the new treaty-making process and machinery advocated by RCAP did not materialize either. To the extent that institutional change was to be realized along the lines of the model suggested by RCAP, it was to come from

274  Commissions of Inquiry and Policy Change

negotiated nation-to-nation agreements. The Department of Indian Affairs and Northern Development (DIAND, changed to the Department of Aboriginal Affairs and Northern Development in 2011) retained its place as the prominent policymaker and institutional actor for the federal government. But important institutional innovations giving Aboriginals a more prominent place in policymaking did occur, such as the creation of Nunavut in 1999, the inclusion of self-government in land claims agreements, new funding agreements, increased participation in provincial, territorial, and municipal governments, and the devolution of policy responsibilities in several jurisdictions. Overall, though, these disjointed institutional initiatives, while often consistent with the thrust of RCAP, were not necessarily directly attributable to it. Some fifteen years after RCAP had completed its work, it is perhaps a stretch to say that this COI had an impact on institutional restructuring of the federal government. Indeed, Russell concludes that RCAP had little influence on policy. However, reflecting that the term “Indian” is a legal and not a socio-cultural term, the federal government renamed DIAND as Aboriginal Affairs and Northern Development Canada. This lent legitimacy to a broader socio-cultural definition of Indian, which included Metis and Inuit, and reflects the gradual educative impact of RCAP while showing the link between ideas and institutions. The Krever Inquiry was an investigative COI led by one person and included an important research and legal component alongside a public hearings process. According to Orsini’s analysis, these internal features did not result in advantages in policy change, but he argues that the actors and features of the federal system were centrally important to institutional change. Failure of existing institutional arrangements was a key factor in the failure of the blood system, while implementation of Krever’s recommendations required intergovernmental cooperation. After Krever’s interim report, federal-provincial-territorial negotiations were implemented to restructure the blood system and create a new national blood authority. Krever’s recommendations for institutional change and the creation of Canadian Blood Services (CBS) were thus based on policy actions both inside and outside the auspices of the COI. Indeed, federalism and intergovernmental dimensions seem to be a central institutional feature often overlooked in explaining the degree of policy change related to COIs, as the Romanow Commission also indicates. In addition, Krever provided the impetus for the federal government to redefine and institutionalize its role in protecting public health ­generally and blood services specifically. The creation of CBS as a

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not-for-profit, charitable organization whose sole mission is to manage the blood and blood products supply for Canadians indicates that institutional change flowing from a COI can occur beyond the confines of the state and public sector. While CBS does receive its funding from the provincial and territorial ministries of health and is regulated by Health Canada, it is not a government agency. Ultimately CBS is accountable to the federal minister of health but has provincial representation on its board. A separate organization, Héma-Québec, operates in the province of Quebec. Federalism and jurisdictional authority clearly made a difference in the Romanow Commission. The Romanow Commission was a federal COI, but constitutionally health policy resides with the provinces. Therefore, it is not surprising that institutional changes did not result from this COI; indeed, it was beyond its mandate to recommend institutional change at the subnational level. Yet, as O’Reilly notes, the 1961 Royal Commission on Health Services (the Hall Commission) did result in policy change, despite this institutional limitation. Ultimately, the recommendations for institutional change were limited to those the federal government could make to intergovernmental institutions. O’Reilly notes there was some resistance from Health Canada and the public service to changes to federal institutions or the Canada Health Act, and indeed none were recommended. The commission did call for a new national health council, and the Health Council of Canada was established. However, O’Reilly concludes that accountability institutions and reporting measures were not developed or enhanced significantly after the COI, and those that did emerge would have likely developed without the COI. O’Reilly’s analysis also indicates that the institutional features of the COI itself did not matter. It is notable for being a small, short, policy-advisory COI with a single commissioner and modest research and public consultations components. Unusually, it was located outside of Ottawa and used public opinion research more than many other COIs, but none of these features made a difference in comparison to the role of ideas as outlined above. The Walkerton Inquiry was also an investigative COI led by one person. However, the institutional feature of two parts – a policy research component and legal component alongside a public hearings process – were institutional design features that contributed to immediate and significant policy change. Institutional change resulting from this COI is  evident at all levels within provincial jurisdiction. First, it focused on  provincial jurisdiction, thereby avoiding the intergovernmental

276  Commissions of Inquiry and Policy Change

challenges noted by other contributors as limiting policy change. Second, the functioning of institutions, not a lack of them, was part of the problem and was a central focus of the inquiry. Third, although no new institutions were recommended or created as a result of the COI, aside from source water protection committees under the existing machinery of government, three new pieces of legislation emerged. In addition, bureaucratic institutional arrangements were restructured at the provincial, municipal, and watershed levels. The degree of policy change is clearly evident by comparing institutional arrangements before and after this COI. Similar to the Krever Inquiry and the Walkerton Inquiry, in the Goudge Inquiry institutions were seen as a key part of the policy problem and of the solution. This COI was confronted with ambiguity between the institutions involved in death investigations. These were seen by both state and societal actors involved with the COI as contributing factors to policy and system failure. This set the stage for collective choice to reform those institutions, and reforms to the death investigation system appear to be the most visible elements of policy change attributable to the Goudge Inquiry. Although the COI advanced two institutional models – the “coroner model” currently used and the “medical examiner model” used in the United States – Sossin concludes that the decision by the COI to recommend reforms to the coroner model helped ensure that the government would implement policy change. Accountabilities were clarified and a Forensic Pathology Registry was created to ensure only qualified pathologists could participate in death investigations. A Death Investigations Oversight Council was also created to improve oversight and accountability. The Goudge Inquiry also resulted in legislative change as the Coroners Act (1990) was amended. Sossin notes that the legislative amendments were underway at the same time as the COI, but ultimately the resulting legislation directly reflected the recommendations of the COI. Here, the amount of “fit” between existing institutions and recommendations for new institutions seems to be an important factor in determining the degree of policy change. In addition, the institutional features of the COI itself as a one-person investigative COI with a research component, legal component, public hearings and engagement component, and policy change orientation that were all aligned was another factor explaining the degree of policy change resulting from this COI. The cases compared here do not seem to indicate that internal institutional features of COIs alone are determinants of policy change. As we have seen in this section, some COIs are designed as one-person

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inquiries, while others have multiple commissioners. Whether one-­ person COIs have a greater or lesser chance of being influential in policy change than COIs with several commissioners is an interesting question. No doubt if the Berger, Krever, Goudge, or Walkerton COIs are used as exemplars, then one-person commissions clearly can have a significant impact, whereas RCAP, for example, with its seven commissioners, had much less direct impact on policy change. On the other hand, Gordon and Romanow were one-commissioner exercises that resulted in almost no policy change, and Macdonald was a large commission that resulted in significant policy change. The state of policy institutions prior to the COI does seem to matter across our cases. In those COIs where institutions were perceived as being broken or dysfunctional and there was agreement on this with the COI, the public, and political elites, the stage seemed to be set for some degree of policy change. In those cases where pre-existing institutions were determined to be lacking or non-existent, the probability of policy change in the form of new institutions seems to be very likely. It is clear from a cross-case comparison that a favourite recommendation of COIs is to create institutions, primarily bureaucratic institutions, to champion and ensure that policy change happens. Legislative change is less common, and intergovernmental change and constitutional change even less so. Arguably the changes in institutions documented across these cases before and after the COI illustrates that this kind of policy change is possible. However, the analysis also reveals that those cases where long-standing institutions were supported by vested interests committed to existing policy, like Romanow and RCAP, seemed to be the most resistant to change. The analysis of policy change therefore must include interests. It is to the role and significance of actors that we now turn. Actors In some theories of policy change, actors or interests are deemed the most important determinants of policy change. Actors include individuals and organized interests. In this section we focus on the question of whether a change in actors, or change in their respective power and influence in the policy process as a result of a COI, makes policy change more likely. In examining the role of individuals, and in particular the centrality of commissioners, each of the cases illustrates the role of actors in a unique way. But there are some common findings as well. Only

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by comparing actors across COIs does this become clear. In all cases, the interplay of key actors has an important impact on the workings of COIs, and therefore on the chances for prompting policy change. Key actors include those in the COI itself (commissioners, research staff, commission counsel etc.), other key policy champions inside and outside government, bureaucratic actors, academic researchers, experts, the general public, and the media. An analysis of actors included and excluded in a given COI includes looking at the groups granted standing in a given COI, teasing out which actors were more important, and analysing representational tensions and alignments. It is also important to note that the focus on the policy problem central to each COI to some degree determines the actors engaged. In the scholarship on COIs, commissioners are seen as central to under­ standing the success of a given COI. Clearly the cases of the Macdonald, Berger, Walkerton, and Goudge Inquiries outline how important individual commissioners can be. Ratushny goes as far as saying that “the best way to ensure a successful commission of inquiry would be to appoint Dennis O’Connor as the commissioner” (Ratushny 2009, xvii). Indeed, besides heading the Walkerton Inquiry, O’Connor was appointed by the federal government to head the 2006 Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar. The personal leadership abilities, traits, and background of commissioners, then, seem to be important in terms of policy change. The COI literature also indicates the occupational backgrounds and political acuity of commissioners may be important (see table 13.1). Half the chairs in our case studies were judges, three were former politicians, one was a businessman, one a scientist, and one a journalist. In those COIs where policy change was transformative and direct, COIs were headed by a journalist, a politician, a geneticist, and three judges (RCSW, Macdonald, RCNRT, Krever, Walkerton, and Goudge). Lest one rush to the conclusion that the leadership of judges provides the best chances for policy change, though, in one case where policy change was marginally transformative but diffuse, the commissioner was a judge (Berger). In those COIs that were marginal and limited in terms of policy change, the commissioners were a businessman, a judge, and two politicians (Gordon, RCAP, and Romanow). It should be noted, however, that in all three investigative COIs in which a judge was the commissioner, policy change was transformative and direct (Krever, Walkerton, and Goudge). Therefore, there may be a general correlation between occupation of the commissioners and type of COI.

A Comparative Analysis  279 Table 13.1 COI Commission Chairs and Occupational Background

Commission of inquiry

Chair

Prior position/ occupation

Royal Commission on Canada’s Economic Prospects, 1957 (Gordon Commission) Royal Commission on the Status of Women, 1970 (Status of Women) Mackenzie Valley Pipeline Inquiry, 1974 (Berger Inquiry) Royal Commission on the Economic Union and Development Prospects for Canada, 1985 (Macdonald Commission) Royal Commission on New Reproductive Technologies, 1993 (Reproductive Technologies) Royal Commission on Aboriginal Peoples, 1996 (RCAP) Commission of Inquiry on the Blood System in Canada, 1997 (Krever Inquiry) Commission on the Future of Health Care in Canada, 2002 (Romanow Commission) Walkerton Commission of Inquiry, 2002 (Walkerton Inquiry) Inquiry into Pediatric Forensic Pathology in Ontario, 2008 (Goudge Inquiry)

Walter Gordon

Businessman

Florence Bird

Broadcaster and journalist Judge

Thomas Berger Donald S. Macdonald

Politician

Patricia Baird

Geneticist

René Dussault George Erasmus Horace Krever

Judge Politician Judge

Roy Romanow

Politician

Dennis O’Connor

Judge

Stephen Goudge

Judge

The number of commissioners and the type of COI may also be factors. Of the COIs in which policy change was transformative and direct, three were policy advisory COIs with a large number of commissioners (RCSW had seven, Macdonald had thirteen, and RCNRT had five), while three were investigative COIs with a single commissioner each (Krever, Walkerton, and Goudge). Of the three COIs that resulted in policy change that was marginal and limited, all were policy advisory COIs; one had three commissioners (Gordon), one had a single commissioner (Romanow), and the third had seven commissioners (RCAP). One policy advisory COI with a single commissioner, Berger, resulted in policy change that was transformative but diffuse. The Gordon Commission represented a COI dominated by a strong chair who steered the COI towards his own conclusions, not unlike Macdonald and Romanow in their COIs. This may help explain the lack

280  Commissions of Inquiry and Policy Change Table 13.2 Do Number of Commissioners and Type of COI Matter?

COI

Number of commissioners

Type of COI

Policy change

Policy advisory

Transformative and direct

Gordon

3

•

RCSW

7

•

Berger

1

•

Macdonald

Investigative

Transformative but diffuse

Marginal and limited •

• •

13

•

•

RCNRT

5

•

•

RCAP

7

•

Krever

1

Romanow

1

•

Walkerton Goudge

1 1

•

• •

• •

• •

• •

of direct influence the Gordon COI had on policy change, since his ideas were outside the mainstream of economic thinking at the time (to be generous) or simply not well formulated and articulated (to be less kind). Nonetheless, the COI provided the context within which a new constellation of actors in the form of (mainly) young academics and policymakers could interact and present their ideas. This COI supplied many of the leading public intellectuals for both sides of an emerging debate about future economic policy for Canada. Had these actors – the main researchers engaged by the COI – not been divided among themselves, it is conceivable that the Gordon Commission’s impact on policy change would have been more direct and significant. The actors most responsible for policy change resulting from the RCSW were both internal and external to the COI. The emergent women’s movement propelled its cause onto the public agenda, beginning with a coalition of over thirty women’s groups gathered in 1966 by Laura Sabia to demand the establishment of a COI. This coalition and other progressive women from coast to coast effectively employed the media to publicize their demands. Political opportunity came knocking in that the Pearson government was in a minority supported by the progressive NDP. While Pearson played the role of reluctant political champion, Judy LaMarsh had no such reservations and played an important part

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within government, pushing Pearson to hold the COI. The energetic and committed personnel of the COI itself were important in guiding it to fruition. A strong chair supported by strong commissioners, an able research staff, and a galvanized public all contributed to the resulting prospects for policy change. It is clear from Abele’s analysis that Berger himself was an important actor in his COI, and his personal role is central to the policy changes resulting from this COI. But beyond the personnel of the COI itself, one of the greatest impacts of the Berger Commission was to draw actors into the policy development process whose voices had been marginalized. The COI was the impetus for organizing among Inuvialuit, Dene, and Metis communities and organizations. The Berger Inquiry provided resources for northern Indigenous organizations to gain experience, consolidate, and grow, enabling them to better deal with the federal government and DIAND. Certainly Berger gave stimulus to a new politics of the North, which included Indigenous peoples in ways unimaginable only a generation or two earlier. The Berger Inquiry as a social process rebalanced policymaking in the North by listening to community members and strengthening Indigenous organizations and the key organizers who worked in them. Approaches to engaging actors in COIs were broadened; the traditionally limited focus on elites and experts would no longer suffice. Donald Macdonald was a very strong chair among the thirteen commissioners of the Macdonald Commission. He accepted the mandate drafted by the Privy Council Office after having been consulted on it, played a key role in steering the writing of the final report, and was personally behind the key recommendations of the COI. The twelve other commissioners played varying roles, but none as large as Macdonald. Other actors of significance were found among the researchers, parti­ cularly certain economists, as reflected in the focus and ideology of the final report. Their views were supported by key actors within the COI bureaucracy and the business community, creating a momentum for neoconservative continentalism that was hard to resist. Given the appearance of a consensus among certain key actors, the Mulroney government a­ cted quickly, and policy change resulted. Given that the Macdonald Commission consulted more Canadians than any previous COI in history, and that there was no consensus (and indeed much opposition) on the advisability of free trade, it is not surprising the issue became a flashpoint in the subsequent period, and especially the election of 1988. This makes the policy changes attributed to this COI attributable in large part to

282  Commissions of Inquiry and Policy Change

Macdonald himself. A strong commissioner influencing policy change is common to Berger, Walkerton, and Goudge and becomes even more evident in contrasting it with COIs like RCSW, Krever, RCAP, and RCNRT, where the influence of individual actors is more diffuse. In contrast to Gordon, Berger, Walkerton, and Goudge, where a few key individual actors and groups played a central role, several COIs such as RCSW, Macdonald, Krever, and RCAP resulted in the expansion of actors involved in the policy process. RCNRT, for example, received over 15,000 deputations, vastly expanding the constellation of actors in this new policy area. It had seven commissioners representing a wide range of fields. Two had worked on another COI on reproductive technologies in Britain, and one of them was a British citizen. Over 300 researchers representing seventy fields of study submitted work to the COI. In theory the representation of religious and feminist experts indicated a broadening of the actors beyond the medical and legal actors who had dominated policy circles to that point. The engagement of the public and interest groups resulted in strategic alliances. The actors divided into those who advocated change (the techno-pessimist and pro-regulatory actors) and those who defended the science-based system based on professional self-regulation. Ultimately the latter limited policy change as a result of resources and privileges built into the COI research, decision-making, and report writing. This case also indicates how actors who desire change act strategically and actively by using the COI to push an idea and have it legitimized. RCAP is another interesting case in that no particular individuals or groups stand out as central to determining policy change. It is striking that while RCAP went about its work, the COI itself became the key actor in Aboriginal policy. More specifically, the seven commissioners led the discussion of Aboriginal policy, with each commissioner representing a different section of the Aboriginal community and a major part of the country. From 1991 to 1996, DIAND continued to manage policies, but innovation was basically on hold during RCAP. The ­commissioners worked consensually, unlike other multi-commissioner COIs like Macdonald or Gordon, where the chair thoroughly dominated proceedings, or RCNRT, where there was a sharp division among the commissioners. Moreover, other actors, such as the research team, did not usurp the decision-making of the commissioners. Broadening the scope of actors from the research realm to include Aboriginal ­scholars was a noteworthy innovation, as was the wide engagement of

A Comparative Analysis  283

actors from Aboriginal communities across the country in the hearings. As with the RCSW, Berger, and Krever, those most personally adversely affected by government policy were given a forum and emerged as important actors in the COI process. But given the limited impact of RCAP, perhaps the most that can be said is that these actors contributed to the educative influence of this COI more so than to policy change. In particular, the practice of having Aboriginal and non-Aboriginal actors examine their relationship and prospects for improvement resulted, as Russell reports, in a continuing conversation, first within the COI itself and later in the broader society. But Aboriginal actors were much more engaged than non-Aboriginal actors, making the conversation somewhat onesided, and ultimately helping to explain the limited impact of RCAP. In the case of Krever, Orsini argues focusing on actors and COIs as “structures of representation” is key to understanding the extent of policy change. The political struggle for recognition was related to the question of compensation, but also went beyond it. The victims given voice through the COI were significant in catalyzing public opinion about the blood system crisis and the need for policy change. Krever, along with Berger, RCAP, and RCNRT, illustrates how COIs are important venues for actors to articulate their identities. It shows how the representation of actors can contribute to a democratic policy process that, although it may or may not result in policy change, expands the number and types of actors in the process. The power dynamics between actors in Canadian health policy, ­particularly doctors associations, nurses associations, hospital admin­ istrators, pharmaceutical industry associations, and alternative health advocates, are well known to Canadian health policy scholars. O’Reilly’s analysis of the Romanow Commission indicates the usual suspects were involved in most aspects of the COI. In addition, like many COIs, Romanow engaged citizens through “citizen dialogues” and tried to use public opinion research to balance these powerful actors’ interests with those of the public. However, O’Reilly concludes that while health care industry groups did not get the access they wanted, there were no real shifts or realignments in the deeply entrenched actors in this policy area. In terms of the winners and losers, she concludes that the report did give “new ammunition” for the publicly funded medicare sup­ porters, and it did strengthen alliances between the Canadian Medical Association and industry actors. Overall, however, the COI did not change the power or constellation of actors before and after the COI.

284  Commissions of Inquiry and Policy Change

In the Walkerton Inquiry, many different actors with various interests and views were unanimous in their support for some level of policy change. This case illustrates how the focus on the policy problem, in this case drinking water, to some degree determined the actors engaged in policy change. All relevant stakeholders were included, and most were funded as parties with standing. However, similar to other COIs such as Macdonald, RCSW, Berger, Krever, RCNRT, and RCAP, the inquiry broadened the actors involved in the policy process if the policy community is compared before and after the COI. It also realigned the power of those actors. In addition, some new actors and coalitions of actors emerged as a result of this COI. Many made it their priority to ensure that recommendations of the COI were implemented and thus acted as both advocates of policy change and ongoing watchdogs following the COI. Consensus among the actors is critical to understanding the significant policy change that occurred following the Walkerton Inquiry. In addition, leadership by representatives and individuals from some key organizations such as the Canadian Environmental Law Association were important in the COI itself, and in the resulting policy changes. In addition to groups, key individuals, the public, and the media were important actors in Walkerton. As discussed below, Justice O’Connor was key, and his inclusion of a wide range of actors in the inquiry is one explanation for the policy change in this case. His role in building positive relations with key individuals and groups is also important and discussed further below. Sossin’s analysis of the Goudge Inquiry indicates that key state and societal actors all agreed that policy change was required. Although there were different perspectives about the details of this change, there were no supporters for the status quo. The parties with standing reflected the broad range of actors with some direct or indirect stake in policy change. The individual actors were also important. Commissioner Goudge himself was open to policy change. He had some distance from the subject area, was not aligned with any of the actors, and had prior experience with the Berger Inquiry. Sossin notes that commission counsel also had previous COI experience. Like most of the COIs in this analysis, academic actors also were important, although in an indirect way. In this case, the role of individuals was key. The province’s chief forensic pathologist was identified by Sossin as a central actor who played a kind of policy entrepreneur role in the COI. Finally, the media played an important yet indirect part in this COI through investigative journalism and by communicating the proceedings and outcomes of

A Comparative Analysis  285

the COI to the public. A media focus on the public policy issues heightened public awareness and receptiveness to policy change. In comparing the COIs, it is clear that both individuals and organized interests matter to policy change following COIs. Policy change often requires a champion or champions in leadership positions who can influence the COI by supporting the status quo or lending legitimacy to policy ideas that otherwise remain marginalized. This can be the COI chair or some other person(s) within the COI. It can also be those within government who advocate for a COI to be created and who help define the problem to be addressed. Whether responding to a specific event or to a more broadly felt need for policy change, actors try to move their preferred ideas and policy preferences onto the agenda of the COI. Those actors who seek to support the status quo and those who seek to promote new or different problem definitions will contend for control of the COI and the direction of its work. Interestingly there seem to be legal actors – including commissioners and commission counsel – who are involved in more than one COI. Comparison across the cases, and particularly Krever, Walkerton, and Goudge, indicate that there is a kind of loose cadre of COI actors in the Canadian policy landscape connected to the judicial branch. Similarly, certain disciplines in the social sciences provide a disproportionate number of the academic experts who give advice to COIs. The significance of this, however, requires further research. Comparison across the cases clearly indicates that the interplay of both individual actors and organized interests are central to COIs and play a role in prompting and facilitating – or preventing – policy change. Singlecommissioner inquiries may be less complicated on the face of it than multiple-commissioner inquires and improve the possibilities of policy change. But the cases here and the COI literature indicate this alone does not guarantee policy change. Romanow and Berger were one-person shows, but the former could only lead his COI towards marginal and limited policy change, and the latter could only produce transformative but diffuse policy change. Where forceful personalities were involved, policy change could be driven forward. But this alone was no guarantee, as the RCAP and Romanow examples attest. Moreover, personality clashes, weak leadership, and indifferent or hostile prime ministers can all influence the extent of policy change. It seems that whether policy change was transformative and direct, transformative, but diffuse, or marginal and limited as a result of the role played by actors depends greatly on the nature of the particular actors and their relations in each case.

286  Commissions of Inquiry and Policy Change

Relations Each of the cases highlights the significance of both formal relations and informal relationships in policy change resulting from COIs. For example, whether formal institutions include hierarchical reporting relationships or are more democratic-participatory may have an influence on whether they affect formal and informal relations and in turn policy change. Or if informal networks of actors are able to mobilize their common interests, it may have an impact on policy change. Institutional features described above frame the formal and informal relations of individuals. Most COIs are rather rigidly structured in a hierarchical arrangement, with the commission chair at the apex, other commissioners (if there are more than one) in second position, the executive director or legal counsel next, and other staff responsible for organizing the research, public hearings, and logistics of the COI below that. There are also the formal relations between the government and the COI. The COI is an independent creature free from the interference and influence of the executive, legislative, or judicial branches of government while being a creation of the executive branch. At the informal level, personal relationships of actors within those formal structures, while difficult to isolate and analyse, are of great importance to the enterprise of any organization and policy process, including COIs. Personalities, preexisting and new personal and professional ties, questions of trust, access, and other interpersonal factors can come into play in COIs. The cases in this analysis indicate an explicit effort to focus on both formal and informal relations is important and cannot be left out when analysing policy change. In the Gordon Commission, it was Gordon himself who had to convince the government of the utility of a COI. He met resistance from within Cabinet but ultimately prevailed, perhaps because of his close relationship with Lester Pearson. Formally, Gordon was one of three equal commissioners. In practice, he dominated the COI and in particular its final reports. Moreover, Gordon’s relationship with his research teams was rocky at times. They clearly did not all agree on policy prescriptions for the Canadian economy, but Gordon’s formal position at the apex of the COI permitted him to override others and craft much of the final report. One significant result was the consolidation of two policy communities who spent the next several decades engaging each other and the government and offering policy advice about the future direction of the country. These groups developed both formal and

A Comparative Analysis  287

informal relations with policymakers, academics, business, labour, and the public service. Overall Gordon left an ambiguous policy legacy that served as the basis for discussion for a couple of generations of thinkers and policymakers. They tried to interpret the meaning of the Gordon Commission, with the Canadian state adopting a strange amalgam of liberal continentalism and nationalist interventionism. The Gordon Commission’s path of influence was gradual, contested, and mediated. This was a consequence, in part, of the nature of formal and informal relations within this COI. Internal politics and interpersonal relations can play a significant role in determining the functioning of any COI. The chair of the RCSW experienced a solid relationship with the Privy Council Office, which was largely supportive. However, the commissioners differed on how to appropriately respond to what they were hearing from women. Grace reports a few isolated recollections of internal difficulties and personality clashes within the research staff for the RCSW. But relationships were essentially smooth, compared to Gordon, Macdonald, or the RCNRT, for instance. As for relations with civil society, the RCSW empowered women and realigned formal and informal relations between governments and the progressive women’s movement, and in this had a large and sustained impact like that created by the Berger Inquiry or RCAP on Aboriginal and non-Aboriginal relations. While it is challenging to assess the specific impact of the Berger Inquiry on the multifaceted relations between Aboriginal and non-­ Aboriginal peoples of the North, the COI was significant in this area, according to Abele. The impact was felt within the communities of Inuvialuit, Dene, and Metis on development and shared survival. It also contributed to the construction of new Indigenous organizations derived from sharing ideas about the prospects of the North. The Berger Inquiry also simultaneously drew people together into new relationships while dividing northern society between pro-pipeline and pro-development factions against anti-pipeline and anti-development opponents. In a small society such as the North, the impact on communities is perhaps more intense and direct than it would be in larger societies in the South. Hence the impact of the Berger Inquiry may have been more deeply felt in how it shaped relationships in the North. In addition, the Berger Inquiry acted as a catalyst, forging new relationships between activists from among social movements, economic nationalists, environmentalists, and Indigenous rights groups. Many of these relationships may well have been created in the absence of a Berger Inquiry, Abele suggests.

288  Commissions of Inquiry and Policy Change

There was some momentum for this before Berger was launched. But Berger did play a role in providing a forum for these relationships to coalesce around shared concerns over the North as homeland and frontier, and thereby suggested policy change on the basis of a new solidarity then emerging. Abele also outlines how Berger’s relations with the people of the North and the media were also important in understanding the outcomes of this COI. Unlike the relations in Berger, the Macdonald Commission was the product of a group with a long history of close collaboration, trust ties, and personal relationships within the federal government and Liberal Party. Their shared world views infused the design of the COI. An important tweaking of the formal relation between the COI and government was achieved by Executive Director Gerry Godsoe, who insisted that the Macdonald Commission be given access to information and data produced by government departments. He also used his connections with corporate Canada to try to second business people to the COI, though with little success. Once it was up and running, though, another set of relationships developed that moved the COI in a direction quite different from the one the founders expected. This new direction was fostered by relationships within the inquiry, including a mix of seconded public servants, academics, journalists, and private sector actors who jockeyed for positions of prominence. After a certain amount of blood-letting characterized by differing cultural outlooks between, for example, the public servants, journalists, and academics featuring intense rivalries, a strong chair took command. He marshalled a small group within the commission staff and directed the COI to the finish line. While on generally good relations with the other commissioners, Macdonald nonetheless clearly took the reins, and most of the other commissioners were marginalized. The policy group Macdonald assembled worked well in producing the final report. In addition to the drama within the COI, it also realigned some of the major relationships of the broader political economy, lending credence to much of the business community on neoconservative continentalist policy prescriptions, while the labour movement experienced diminished prestige and influence. However, many other popular sector groups, many of which appeared before a COI for the first time, used the experience of the Macdonald Commission as a springboard to deeper relations and interactions with the political system as a whole. As with the Macdonald Commission, there was conflict and some tense relations within the RCNRT. In this case it was conflict between some commissioners as well as tension between the chairperson, Patricia

A Comparative Analysis  289

Baird, and the executive director over control of the scope of the COI. Relations were so bad that four of the commissioners filed suit against Baird and the federal government under the Inquiries Act, claiming they had been excluded from full participation. The management style of the chair was also seen as problematic and impeding both the COI and the direction of policy change. Personality conflicts and competing interests related to a clash of “cognitive maps” and challenges to the dominant frame of the scientific and medical model in this policy area characterized some relations within this COI. Ultimately these relations played out and resulted in limited policy change in moving beyond that model. Thus the Macdonald Commission and the RCNRT present an interesting comparison to COIs with less disputatious internal relationships. Both had internal conflict based on relationships, yet both resulted in policy change that was transformative and direct. Unlike Gordon, Macdonald, or the RCNRT, the relationship between the seven commissioners of RCAP was one of equals, even as the co-chairs acted as primus inter pares. This relationship of equals resulted in working arrangements in which all had input into discussing all policy issues, the positions taken in RCAP’s publications, and the final report. Indeed, the decision-making process required unanimity. However, the requirement of unanimity also meant that Commissioner Allan Blakeney’s fundamental disagreement with the other commissioners on Aboriginal sovereignty resulted in his resignation from RCAP. There was also a close working relationship between the commissioners and the researchers. An important consequence of the generally good relationships within RCAP was the legitimacy it conferred on the COI. RCAP was then able to influence the newly emerging relationship in the broader society between Aboriginal and non-Aboriginal communities. Polices focused on partnership rather than assimilation and a less hierarchical relationship gradually became part of the new landscape. However, as Russell notes, despite the relatively harmonious internal relations in RCAP, policy change was not forthcoming. Indeed, the Chrétien government was decidedly cool to the RCAP report, suggesting a relational gap between the COI and the state not unlike that between the Gordon COI and the government of the day. In the case of the Krever COI, Orsini outlines that some relations between actors were more “privileged” than others, as was the case with Macdonald and Romanow. Some actors and organizations suffered from internal strife. Relations between victims and political actors (federal and provincial) after the COI reported was also central to understanding the degree of policy change that came out of the COI. What is clear from this case is that actors adapt their relations and are quite strategic during

290  Commissions of Inquiry and Policy Change

COIs. These relations were played out in the context of the COI’s internal struggle to fulfil both its investigative and representational roles. Ultimately this “identity crisis” shaped the relations and the degree of policy change that resulted. As with other COIs, in the Romanow Commission the relations between key individuals seemed to matter in the policy change that was both possible and ultimately realized. O’Reilly notes that the choice of Roy Romanow, a former premier, and other “intergovernmentally astute personnel” who combined government and scholarly expertise set the relations in an intergovernmental context from the start. Although there were some jurisdictional tensions, O’Reilly concludes that, overall, relations were positive between the key group of individuals working on the COI, the federal government, and provincial governments. The long-standing close personal relationship between Romanow and Chrétien dating back to the constitutional wars of the 1960s to the 1980s might have foreshadowed a successful COI. However, this did not ultimately matter in terms of policy change. As indicated above, several studies have demonstrated that the personal style and personal relations built by Justice O’Connor during the Walkerton Inquiry made a significant difference in creating overwhelming support for adopting and implementing the COI’s recommendations. It is clear in this case that some actors had very close contact with the commissioner and the COI staff. The Canadian Environmental Law Association had very valuable expertise and good relations with a wide range of policy actors. Connections between environmental groups, municipal groups, agricultural groups, and a wide range of experts were generally respectful and collaborative. Although there were tensions and aggravated relations on specific issues such as private versus public provision, regulation and the environmental scope of the COI, communication was generally positive and went some way in explaining the significant policy change that flowed from the Walkerton Inquiry, and the ten-year period of policy change after this COI. Although there were some tensions between the Conservative government and the COI over political accountability for policy and administrative decisions, relations between the government and the COI were cooperative. Interactions between the COI and bureaucrats were also generally positive. Even the newly elected McGuinty Liberal government maintained the political will and commitment to implement all of the recommendations. As in Walkerton, relations between actors in the Goudge Inquiry were not adversarial, Sossin writes, despite the quasi-judicial focus and heavy

A Comparative Analysis  291

involvement of legal actors. Also similar to those in Walkerton, relations between the COI and government of the day were collaborative. Sossin points to the fact that the government selected a commissioner “with a similar mindset.” Moreover, relationship building to engage in policy change was well underway as the COI worked. This highlights the significance of ongoing relations outside the COI and the degree to which those simultaneous efforts are congruent with the directions of a COI. Sossin also describes the significance of political will that underpins relations. The same government that called the COI oversaw and implemented the policy changes required. Political will to support change came from all sides. Lawyers, parties with standing, victims, opposition parties, bureaucrats, and key individuals in the criminal justice and investigations system all supported policy change, and this was a common foundation of good relations that Sossin indicates resulted in policy change. The personal style and commitment of the commissioner was also seen as very important. Equally significant, Sossin argues, was the absence of any actors who saw the COI in adversarial terms. Positive relations within and in close proximity to the COI seemed to reinforce policy change in this case. Collectively, the cases illustrate that the nature of formal relations as well as informal relationships are important aspects of COIs and help explain the degree of policy change resulting from a given COI. The limited lifespan of COIs means that personal relationships must be forged early and be sustained in sometimes quite difficult and stressful circumstances. How well actors respond to the pressures of life inside a COI will partly determine its impact on policy change. But causal arrows cannot necessarily be drawn between COIs with solid relations and those that brought transformative and direct policy change. For instance, strains and stresses within the Macdonald Commission resulted in very difficult relations between key players, but transformative and direct policy change resulted nonetheless. Similarly, the RCNRT expe­ rienced tense relations but also resulted in transformative and direct change. On the other hand, apart from a single dissenting commissioner who resigned not as a consequence of bad relations but of differences over principle, RCAP seemed to experience good working relationships, but proved ineffective in policy change. Comparative Summary In this analysis we have tried to tease out whether policy change at­ tributable to a given COI can be inferred from the interplay of ideas,

292  Commissions of Inquiry and Policy Change Table 13.3 Typology of Policy Change Applied to COI Cases Type of policy change

Evidence of policy change

COIs

Transformative and direct

Policy change evident in ideas, institutions, actors and relations that are directly attributable to the COI; profound and fundamental alternations to policy post the COI; evident in the short or medium term

RCSW, Macdonald, RCNRT, Krever, Walkerton, Goudge

Transformative but diffuse

Gradual changes evident; some directly attributable to the COI; some elements changed, others not; evidence of change over the medium or long term

Berger

Marginal and limited

Very limited or no change observable in terms of ideas, institutions, actors or relations; little evidence of change in the short, medium or long term

Gordon, RCAP, Romanow

institutions, actors, and relations. Admittedly there is some arbitrariness to these classifications, and depending where one focuses the lens of “policy change,” assessments may differ. But in general, most of these COIs have had some observable impact upon policy change when one examines ideas, institutions, actors, and relations within a policy domain before and after the COI. We can draw some tentative conclusions on the basis of the evidence contained in the comparative analysis of our ten case studies. Table 13.3 classifies each of our cases according to the type of policy change it represents. The RCSW, Macdonald, RCNRT, Krever, Walkerton, and Goudge COIs represent inquiries whose impact was transformative and direct. An impact was strongly felt in policymaking circles, in changes in policy goals, and in instruments and implementation arrangements. Clearly, some combination of ideas, institutions, actors, and relations contributed to bring about transformative and direct policy change in these cases. This comparative analysis challenges the COI literature that is critical of the value of COIs. At the same time, it reflects the theoretical and empirical challenge of making generalizations about policy change, as each case is a unique constellation and mix of the four factors examined. The Berger Commission is the only COI whose effect on policy change we characterize as transformative but diffuse. More than thirty years after this COI, the scope and degree of policy change is mixed. This may be

A Comparative Analysis  293

the most interesting case, in some ways. Some changes in ideas, institutions, actors, and relations were evident and directly attributable to the COI in the short term, but the more observable changes were evident over the medium and long term. This inquiry was groundbreaking in contributing to a new ideational landscape for thinking about the North. Institutionally, changes were not immediately evident. But in the longer term, some significant changes are attributed to this COI. In addition, Berger helped innovate intervener funding as an institutional change in COIs themselves. Berger was a small policy advisory commission, with strong leadership and a modest budget and resources. It had a narrow mandate, yet it broadened the array of actors involved in policy considerations and had longer-term policy influence. It experienced positive and harmonious relations both with the government that established it and within the COI among the personnel involved. Although it had modest success in generating policy change, some moderate and more indirect changes in ideas, institutions, actors, and relations are evident in this case over the medium to long term. Three of our cases are characterized as being marginal and limited in policy change (Gordon, RCAP, and Romanow). One case (Gordon) was confronted by an ideational landscape marked by inertia and stasis. The other two were challenged with an ideational landscape marked by considerable contention. In RCAP, a consensus on a range of ideas about Aboriginal issues was achieved by those involved and directly affected by the COI, but it only gradually infused thinking about Aboriginal issues, policy, and self-government over the long term. In Romanow, an ideational consensus was claimed, but contention in the ideational environment subsequently continued unabated. In institutional changes before and after the COI, all three cases displayed few changes in policy institutions that were attributable to these COIs. In terms of their internal institutional features, all three were policy advisory types, yet they differed institutionally. Gordon had three commissioners of which one clearly dominated, RCAP had multiple commissioners who worked as equals, while Romanow was a one-man show. Their budgets and resources similarly differed, as did their mandates. Gordon and RCAP had large and sweeping mandates, whereas Romanow was much more limited in scope. The actors involved included strong leaders in all three. Unlike Gordon, though, RCAP sought to be as inclusive as possible of many marginalized voices. Broadening the number and type of actors involved was a key characteristic of RCAP. Romanow enjoyed strong leadership, but, despite extensive public input, in the end

294  Commissions of Inquiry and Policy Change

remained limited in effect by the narrow scope of the mandate. Relations with the government were good in all three cases, and none suffered from much internal strife insofar as informal personal relationships were concerned. Overall, the authors in each of these cases conclude that policy change was marginal and limited. What Do These Findings Contribute to Scholarship on COIs? By using a comparative analysis of several COIs over several decades, it is clear that theories of policy change and a focus on ideas, institutions, actors, and relations enriches our understanding of both COIs and policy change. This highlights the fact that scholarship on COIs must take policy into account. Interesting patterns emerge from the ten cases in some classic questions in the COI literature about whether the type, size, or internal features of a COI matter in policy change. As outlined in chapter 1, the institutional framework of COIs is based on a broad common model that is generally adhered to. Scholarship indicates this matters in policy outcomes and policy change. However, the distinction between policy advisory and investigative COIs may not reveal much about which type of COI has the greatest potential to bring about policy change. As highlighted in table 13.3, three of the cases where policy change was transformative and direct were policy advisory COIs (RCSW, Macdonald, and RCNRT) and three were investigative (Krever, Walkerton, and Goudge). In Walkerton and Goudge, the authors note that they were more like hybrids and that in fact this may have been significant for policy change. Thus having both investigative and policy foci institutionalized into a COI may improve the chances that it will have an impact on policy change. It may also indicate some policy learning between COIs and over time. However, given the limited number of cases and evidence, this is also a cautious comparative conclusion. In the three cases where change was marginal and limited, all were policy advisory COIs. They were also the cases where crisis played a lesser role. Indeed, these types of COIs are seldom established as a result of some precipitating event (Ratushny 2009). The fact that some of the policy advisory COIs did result in transformative and direct policy change indicates that crisis is not an important requirement for policy change to occur. Crisis typically underpins some type of investigative role and mandate for a COI.

A Comparative Analysis  295

One major institutional difference between our ten COIs is the size of the inquiry. Whether a COI has a single or multiple commissioners, and the size of its budget, staff, research, and public hearings components are all factors identified as significant in terms of outcomes of COIs. Does scale matter for policy change? In our cases, COIs that led to transformative and direct policy change were institutionally distinct in other ways. As outlined in table 13.4, half were directed by a single commissioner and had budgets and resources commensurate with their relatively modest sizes (Krever, Walkerton, and Goudge). The other half had multiple commissioners, larger budgets, and greater resources (RCSW, Macdonald, and RCNRT). Four had relatively narrow mandates (RCNRT, Krever, Walkerton, and Goudge), while the other two had broad, sweeping mandates (RCSW and Macdonald). Another central question in the COI literature is whether certain factors related to COIs must be present to account for their “success.” We can ask the same question of these factors related to policy change. As outlined in chapter 1, research by both policy and legal scholars has identified factors like scope of the mandate, few commissioners, strong capable leadership, congruence with legitimate/dominant ideas, dynamic interpersonal relations, political will and government commitment, clear jurisdiction, broad public support, and weak opposition. These factors are thought to be important determinants of “success” in outcomes attributable to a COI. Comparative analysis across our cases reveals that this list of “success” factors does not necessarily hold true for policy change. As outlined in table 13.4, a closer examination of the cases when classified under our three categories of policy change reveals that generally these factors hold for investigative or hybrid COIs, but policy change is also evident in COIs with broad mandates, large numbers of commissioners, and moderate political will, public support, and opposition. However, two of these factors do stand out: leadership and relations. In almost all cases where transformative and direct policy change was evident as a result of a COI, leadership and strong, positive relations of groups and individuals were observed. Leadership, as a specific dimension of agency, is also a factor that Capano and Howlett found in a diverse set of cases in North America and Europe that examined policy change across a number of different policy areas (Capano and Howlett 2009, 225). But they also conclude that leadership is not enough, and they call for further research on this dimension of policy change. From

Transformative but diffuse Marginal and limited

Transformative and direct

RCSW Macdonald RCNRT Krever Walkerton Goudge Berger Narrow mandate

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

Small number of commissioners Strong, capable leadership

•

•

Legitimate/dominant ideas Strong interpersonal relations

•

Political will and commitment Clear jurisdiction

•

Broad public support Weak opposition

•

Gordon

RCAP Romanow • • •

• •

•

•

•

• •

296  Commissions of Inquiry and Policy Change

Table 13.4 Comparative Analysis of Cases, Traditional Factors of “Success” and Policy Change

A Comparative Analysis  297

the cases presented in this volume, leadership is also closely related to the character of relations in the given COI and broader policy process. The outlier related to the significance of leadership and relations is RCNRT. In this COI transformative and direct change was attributed to the COI, but the key factors that led to policy change seemed to be a consensus and domination of certain actors with a particular expertise rather than leadership or relations of key individuals. Conclusion Despite the changing policy context in Canada and the growth of policy capacity within and beyond the state, COIs remain a significant part of the policy landscape in Canada. This analysis reveals they are also unique policy interventions that allow us to gain a deeper and richer understanding of policy change. As we noted in chapter 2, the scholarly literature on policy change has evolved from a simple focus on the classic policy cycle, to incrementalism, to three-way classification models, to exogenous focused, punctuated equilibrium models, to models that focus on both endogenous and exogenous factors. Our contribution starts fundamentally with a historical-neo-institutionalist framework using ideas, institutions, actors, and relations in combination with existing models. While acknowledging that neo-institutional theory focuses on the general lack of policy change and is unable to fully account for change that does occur, fundamentally institutions structure past, present, and future dynamics in the policy process. This foundation, combined with a multidimensional approach, necessitated moving beyond either incrementalist or punctuated equilibrium accounts of policy change. We conceptualized policy change using the classic dimensions of time-scale, mode, scope, and directional logic that underpin our three different types of policy change. We argue that when combined with a focus on ideas, institutions, actors, and relations before and after an intervention, COIs provide us with a unique opportunity to examine the dynamic and multidimensional aspects of policy change. While not exceptional at isolating effects of single factors, this approach captures the more complex processes of “layering and conversion” rather than simply explaining policy change as the result of gradualism or crisis. Because change is evident in multiple aspects of policy and occurs at different tempos, paces, sequences, and directions, it is also important to focus on both endogenous and exogenous factors. Each case study in this analysis thus started with the historical, economic, social,

298  Commissions of Inquiry and Policy Change

cultural, ideological, environmental, domestic, and international context of the policy process. This approach allows for a comparative analysis that permits us to draw important conclusions on the three central questions of this book. What Role Do COIs Play in Policy Change? Just over half of our cases brought change that was transformative and direct, but not all were influenced equally or in the same way by the array of ideas, institutions, actors, and relations. In keeping with the deep analysis of individual COIs in the policy scholarship, this comparative analysis reveals that the ideational landscape is a key factor in understanding the role of COIs in policy change. Ideational transformation can happen in and through COIs. Our cases show that in three out of six instances of transformative and direct change (RCSW, Macdonald, and RCNRT, versus Krever, Walkerton, and Goudge) ideational struggles were at the forefront of the fight to embrace change. Contestation over core ideas was prominent. Whereas in Walkerton there was greater ideational consensus (though short of unanimity), in Krever and Goudge there was widespread ideational concurrence on the nature of the issues confronting policymakers and the required directions for policy change. The role of institutions in policy change is in some ways more difficult to tease out, as COIs are temporarily embedded in the constitutional, legislative, and bureaucratic institutional arrangements of a given policy area. In addition, the institutional features of COIs themselves influence policy change. In this sense, with the exception of Macdonald, none of the cases offer the potential to examine radical institutional change. On the other hand, it is very clear that an analysis of institutions before and after a COI illustrate where institutions changed and did not change as a result of a COI. Yet disentangling the role of institutions in this process is more challenging. It is also clear from this comparative analysis that actors involved in COIs can have an observable influence on policy change. The role of individuals and organized interests in facilitating or inhibiting change is evident in each case. In the six cases where transformative and direct change was evident, strong leadership by key actors was identified in five instances; only the RCNRT apparently was deficient in this regard. Finally, in terms of actors, broad public support could be clearly discerned for three (Krever, Walkerton, and Goudge), whereas a supportive but more fragmented public contributed to policy change flowing

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from the other three (RCSW, Macdonald, and RCNRT). Those cases categorized as marginal and limited in terms of policy change (Gordon, RCAP, and Romanow) indicate that actors are also important in understanding why policy change does not occur. An analysis of relations in each case and comparatively, both within the COI and outside it, also helps us understand the role of COIs in policy change. Of the six inquiries resulting in transformative and direct change, the government appeared to be a reluctant partner in one case (RCSW), but was mainly supportive in the other five. As for informal personal relationships, the record is a little more complex. While good relationships were reported in most cases, in at least two cases the presence of contentious and disputatious personal relationships nonetheless drove the COI towards policy change (Macdonald and RCNRT). Thus, understanding if relations were positive or negative will alone not help us understand the role of COIs in policy change. Would Policy Change Likely Have Occurred without the COI? This question is in some ways the most interesting question that contributors addressed. It is also the most challenging, as it requires hypothesizing what might have been and how policy change would have evolved without the intervention of a COI. The analysis here indicates that some degree of policy change might have occurred, but that COIs were very significant policy interventions that either served as catalysts for change or reconfirmed a commitment to policy stasis. It is also clear that most COIs offer the potential for policy change. With the possible exception of the Romanow Commission, which appeared to be designed to reassert the status quo in health care, our cases indicate that the potential for policy change is a design feature of COIs. However, the marginal and limited cases are most interesting in answering the question of whether policy change would have occurred without the COI. In the cases such as Gordon and RCAP there was the potential and an expectation of more policy change than ultimately can be attributed to these COIs. Would this lack of change have occurred without these COIs? Neither commission resulted in transformative and direct policy change, yet in both cases the authors conclude that policy change would probably not have occurred without the existence of the COI. This raises some very interesting questions that refocus on analysing why policy change did not occur. We argue here that an examination of ideas, institutions, actors, and relations is equally valuable in analysing these cases.

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Why Do Some COIs Result in Policy Change and Others Do Not? This question is perhaps the most challenging. The most that can be said is that policy change depends largely on a variety of factors external and internal to the inquiry process. Organizing those factors into a framework of ideas, institutions, actors, and relations reveals the multilayered complexity of COIs and their widely variable impact on policy change. How we can “accommodate these variations without losing sight of our aspiration to generalize” (Rayner 2009, 92) is an ongoing challenge. Ultimately the findings presented here reveal the value of an approach that takes the multidimensionality and complexity of explanatory factors as a starting point, yet tries to reduce the complexity to the key factors of ideas, institutions, actors, and relations in order to provide insights into the dynamics of policy change (Real-Dato 2009). Through this approach, the cases illustrate “the multiplicity of drivers of policy change” (Capano and Howlett 2009, 9). In keeping with a neo-institutionalist tradition, it is clear that COIs can both constrain and provide for different types of policy change. COIs are embedded yet distinct institutional aberrations. The conclusion from this set of cases is that endogenous variables are considerable when accounting for change and that they are bound up with exogenous factors such as crisis. Crisis played a key role in policy change in these cases as a necessary but not sufficient condition. Analysis of policy change thus requires a focus on both outputs and process. While this makes for more “messy” policy research, it also reflects the reality of the dynamism of public policy. At this stage, further research possibilities can be identified. Among the most interesting is the need for a measure of the relevant weight of ideas, institutions, actors, and relations. Which degree of change requires which combination of factors? Does transformative and direct change require a certain alignment of ideas, institutions, actors, and relations? Does transformative but diffused change require more or less of one or more of each factor? If a COI is marginal and limited in policy change, is it because it lacked the requisite influence of one or more of these factors? The focus here has been more on endogenous factors related to policy change in the domestic context. Context is important in each case; however, future research could focus on Hall’s concept of “policy viability” (Hall 1989). Inwood and Bradford’s contributions on economic and administrative viability are also relevant here (Inwood 2005; Bradford

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1998). They allow for a shifting of emphasis to the broader social, political, and economic context in which policy change occurs. While each of our cases integrates an analysis of these contextual factors, the emphasis is placed more here on the endogenous rather than exogenous factors and the domestic rather than international factors and context. Indeed, the global context is another possible frontier to understanding the role of COIs in policy change. Another approach for future research may be that advocated by Zohlnhofer (2009), who argues that although different kinds of ideas, actors, and events may trigger policy change, formally they need to be adopted by governments and parliaments. Therefore analysis should focus on actors whose agreement is formally required for a change in the status quo, and on the ideological congruence between the advocates of change and the veto players. The cases analysed here indicate that this may be a fruitful approach to furthering scholarship on both COIs and policy change. This is in keeping with some analysts who have concluded that COIs “must be ‘political’ if their recommendations are to have any chance of being adopted. That means that they must consult the public, but at the same time raise the level of public discussion by also educating the public … But they must not be too political or they will fail to identify the bold policy changes that will address societal issues in a new and beneficial way” (Ratushny 2009, 50). All these are possible avenues for future research. By conducting a comparative analysis of a wide range of COIs in Canada and focusing on policy change and the critical factors of ideas, institutions, actors, and relations, this book hopes to have furthered our understanding of COIs and what role they play in the complex world of policy change. COIs have been described as “a subject wrapped in a haze of common knowledge” (Lauriat 2010, 25). We hope this analysis has penetrated some of that haze.

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Contributors

Frances Abele, professor, School of Public Policy and Administration, Carleton University, and adjunct professor, Native Studies, Trent University Neil Bradford, associate professor, Department of Political Science, Huron College, Western University Joan Grace, associate professor, Department of Politics, University of Winnipeg Gregory J. Inwood, professor, Department of Politics and Public ­Administration, Ryerson University Carolyn M. Johns, associate professor, Department of Politics and Public Administration, Ryerson University Patricia L. O’Reilly, associate professor, Department of Politics and Public Administration, Ryerson University Michael Orsini, associate professor, School of Political Science, ­University of Ottawa Peter H. Russell, professor emeritus, Department of Political Science, University of Toronto

334 Contributors

Francesca Scala, associate professor, Department of Political Science, Concordia University Lorne Sossin, dean and professor, Osgoode Hall Law School

The Institute of Public Administration of Canada Series in Public Management and Governance Networks of Knowledge: Collaborative Innovation in International Learning, Janice Stein, Richard Stren, Joy Fitzgibbon, and Melissa Maclean The National Research Council in the Innovative Policy Era: Changing Hierarchies, Networks, and Markets, G. Bruce Doern and Richard Levesque Beyond Service: State Workers, Public Policy, and the Prospects for Democratic Administration, Greg McElligott A Law unto Itself: How the Ontario Municipal Board Has Developed and Applied Land Use Planning Policy, John G. Chipman Health Care, Entitlement, and Citizenship, Candace Redden Between Colliding Worlds: The Ambiguous Existence of Government Agencies for Aboriginal and Women’s Policy, Jonathan Malloy The Politics of Public Management: The HRDC Audit of Grants and Contributions, David A. Good Dream No Little Dreams: A Biography of the Douglas Government of Saskatchewan, 1944–1961, Albert W. Johnson Governing Education, Ben Levin Executive Styles in Canada: Cabinet Structures and Leadership Practices in Canadian Government, edited by Luc Bernier, Keith Brownsey, and Michael Howlett The Roles of Public Opinion Research in Canadian Government, Christopher Page The Politics of CANDU Exports, Duane Bratt Policy Analysis in Canada: The State of the Art, edited by Laurent Dobuzinskis, Michael Howlett, and David Laycock Digital State at the Leading Edge: Lessons from Canada, Sanford Borins, Kenneth Kernaghan, David Brown, Nick Bontis, Perri 6, and Fred Thompson The Politics of Public Money: Spenders, Guardians, Priority Setters, and Financial Watchdogs inside the Canadian Government, David A. Good Court Government and the Collapse of Accountability in Canada and the UK, ­Donald Savoie Professionalism and Public Service: Essays in Honour of Kenneth Kernaghan, edited by David Siegel and Ken Rasmussen Searching for Leadership: Secretaries to Cabinet in Canada, edited by Patrice Dutil Foundations of Governance: Municipal Government in Canada’s Provinces, edited by Andrew Sancton and Robert Young Provincial and Territorial Ombudsman Offices in Canada, edited by Stewart Hyson Local Government in a Global World: Australia and Canada in Comparative Perspective, edited by Emmanuel Brunet-Jailly and John F. Martin

Behind the Scenes: The Life and Work of William Clifford Clark, Robert A. ­Wardhaugh The Guardian: Perspectives on the Ministry of Finance of Ontario, edited by Patrice Dutil Making Medicare: New Perspectives on the History of Medicare in Canada, edited by Gregory P. Marchildon Overpromising and Underperforming? Understanding and Evaluating New ­Intergovernmental Accountability Regimes, edited by Peter Graefe, Julie M. Simmons, and Linda A. White Governance in Northern Ontario: Economic Development and Policy Making, edited by Charles Conteh and Bob Segsworth Off and Running: The Prospects and Pitfalls of Government Transitions in Canada, David Zussman Deputy Ministers in Canada: Comparative and Jurisdictional Perspectives, edited by Jacques Bourgault and Christopher Dunn The Politics of Public Money, Second Edition, David A. Good Commissions of Inquiry and Policy Change: A Comparative Analysis, edited by Gregory J. Inwood and Carolyn M. Johns