Commissioner Marion Buller of the National Inquiry into Missing and Murdered Indigenous Women and Girls recently published an essay in the Globe and Mail making the case for a two-year extension to her commission’s mandate. Appointed by the Trudeau government in September 2016, the inquiry is currently required under its terms of reference to submit a final report no later than November 1, 2018.

As of this writing, three weeks have passed since the Commissioner’s essay appeared, and more than nine weeks have passed since the inquiry’s request for an extension was first submitted to the federal government. No response has been forthcoming. For a process already beleaguered by criticism and internal strife, the current uncertainty does little to help the inquiry’s fragile grip on public confidence.

From a political perspective, the government’s unhurried response may stem from the belief that it faces only bad options. Granting the extension means incurring inevitable criticism for having underestimated the length and cost of the inquiry, and risks prolonging controversy about the commission into the next election campaign. Denying the extension would almost certainly deal a blow to the government’s goal of advancing reconciliation with Indigenous people, diminishing credibility that the Prime Minister and several members of his cabinet have expended much personal energy to build. If the government considers a more radical option — replacing some or all of the current commissioners or redefining the commission’s mandate — it risks compromising the integrity of a process that relies on institutional independence as a source of public trust.

Meanwhile, the absence of an answer to the inquiry’s request exacerbates its current problems. The commissioners, having acknowledged failures of communication earlier in the inquiry, are no doubt reluctant to commit fully to a clear road map for the remainder of the process without knowing whether they have six months or two years to work with. This in turn frustrates the legitimate demands of participants and stakeholders to know what will happen next, deepening criticism and confusion in a vicious cycle.

So how should the public judge the commissioners’ request for a two-year extension?

Some context is needed in answering this question. First, it should be recognized that the national inquiry is truly an unprecedented process. All public inquiries attract a variety of civic expectations, which commissioners must navigate in addition to their fact-finding and policy mandates. But no prior Canadian inquiry has explicitly combined so many goals in a single process. The MMIWG Inquiry is asked to explain systemic causes of violence, marginalization and vulnerability disproportionately affecting Indigenous women and girls; to identify deficiencies in institutional responses and policies across all sectors of government, in every Canadian jurisdiction; to adopt an approach that is trauma-informed, inclusive and dignifying for victims, their family members and loved ones, and that advances the cause of reconciliation; and to engage with First Nations, Inuit, and MĂ©tis communities across Canada, including in remote regions without ready access to transport and communication infrastructure.

All public inquiries attract a variety of civic expectations, which commissioners must navigate in addition to their fact-finding and policy mandates. But no prior Canadian inquiry has explicitly combined so many goals in a single process.

Second, it is rare for any inquiry, let alone one as ambitious in scope as this one, to complete its work within two years. Commissioner Paul R. Bélanger’s inquiry into the fatal collapse of the Elliot Lake mall in northern Ontario in 2012 provides a valuable comparison. It was narrowly focused on a discrete event involving easily identifiable stakeholders and a specific geographic community. It was also conducive to the application of familiar legal hearing methods, bearing no onus to innovate “decolonizing” procedures, as the MMIWG Inquiry does. Nevertheless, the Elliot Lake Inquiry took two years and three months to complete its work, and it is widely regarded as an efficient and successful commission. Many other comparisons would corroborate the view that it was always unrealistic (and probably never really expected) that the MMIWG Inquiry would meet its original two-year deadline.

Given the institutional memory that should exist about the length of past federal inquiries, responsibility for an unrealistic timeframe rests primarily with the government. An extension of the scale sought by the MMIWG Inquiry may well reflect the true length of time that was always needed to fulfill its mandate. That this is the case reflects an institutional limitation of public inquiries generally, whatever the distinct shortcomings and controversies that have arisen around this commission. But those shortcomings are nonetheless relevant in evaluating whether the quality of leadership, planning and communication demonstrated by the inquiry thus far gives confidence that an extended timeframe will lead to success.

On this score, the public can legitimately demand more from the commissioners: that they articulate precisely what they intend to accomplish with this extra time, and why it justifies the costs — not just in monetary terms, but in testing the limits of sustained public attention to such an important subject. Problems of communication and clarity continue to hamper the commission.

To give one example: a persistent area of ambiguity has been the degree to which the inquiry will scrutinize police responses to violence against Indigenous women and girls. No issue could demand greater sensitivity to the wishes of survivors and loved ones. In testimony to a parliamentary committee last September, Commissioner Buller stated her intention to “investigate the investigations,” and public hearings studying police policies and practices have been announced for the end of June.

But the focus and structure of those hearings remain unclear. Will they rely on behind-the-scenes scrutiny of individual cases in order to crystallize common issues that can then be addressed publicly? Or will individual cases themselves be considered in the hearings, and if so, how will those cases be selected, accounting for fairness to numerous families who may want their loved ones’ cases to be reviewed? What depth and scale of scrutiny is feasible within an extended mandate and appropriate under the inquiry’s terms of reference? What does the commission mean when it alludes to the possibility of issuing findings of misconduct as a result of these hearings, and how can it take a nationally consistent approach given different jurisdictional constraints on this power?

It is not unreasonable at this stage of the inquiry to expect concrete answers to these questions. Some of these answers would no doubt assist the federal government in deciding whether to grant an extension, but the government is rightly limited in pressing for them out of respect for the commission’s independence. The public at large is not so limited. If broad support is sought for the extension of the inquiry’s mandate, the public must be reasonably informed of what such an extension will enable, and of what will be sacrificed if it is declined. In the absence of such information, skepticism about the commission’s ability to restore faith in its own process, let alone contribute to broader confidence in institutions meant to support Indigenous women and girls, is entirely warranted.

A final observation is relevant to public appraisal of the MMIWG Inquiry. Surely one of its most distinctive and powerful attributes was the pre-inquiry consultation itself, a process that saw three senior cabinet ministers engage directly with Indigenous communities and survivors of violence to understand their needs and expectations for a national process. Knowing that one cost of an independent and ad hoc commission is the lengthy time it will take, we should remain mindful of the value of direct and very public engagement between elected leaders and communities. It remains the prerogative and the responsibility of all elected officials to leverage their ability to shed light on the experiences of Indigenous women and girls, hear from them directly and work now to implement necessary reforms. A national inquiry can help inform those actions, but it is no reason to delay them.

Photo: RICHMOND, BC – Bernie Williams, right, who has been an advocate for women in Vancouver’s Downtown Eastside for 30 years, testifies at the final day of hearings at the National Inquiry into Missing and Murdered Indigenous Women and Girls, April 8, 2018. THE CANADIAN PRESS/Darryl Dyck

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Grant Hoole
Grant Hoole is a Canadian lawyer, postdoctoral fellow and director of the Inquisitorial Justice Project at the Gilbert + Tobin Centre of Public Law, Faculty of Law, University of New South Wales in Sydney, Australia.

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