Before it has even begun, concerns about the openness of the Charbonneau Commission into corruption in Quebec are emerging.
In an opinion piece published Friday, Mark Bantey, a Montreal lawyer specializing in media law, criticized the rules of procedure that will govern the public hearings into corruption. In contrast to Supreme Court of Canada rulings that specify public access to court cases and hearings can only be barred in exceptional cases, the commission's rules allow the possibility much of the testimony and evidence will be produced behind closed doors and forever hidden, Bantey said.
"The whole point of the commission is to educate the public about dealings and possible corruption in the construction industry," Bantey said. "How can the public be informed if hearings are held behind closed doors and participants are forbidden to disclose the evidence?"
Created last fall by Premier Jean Charest's government after years of pressure from the public, the Charbonneau Commission has been granted full inquiry and subpoena powers to call witnesses. The probe, looking into criminal activity in the construction industry as well as government, hospitals, school boards and parapublic institutions, is expected to rely heavily on confidential tips and information.
In late February the commission put out its draft of the rules governing its hearings, scheduled to begin in the fall.
While the hearings are supposed to be public, the rules state that where circumstances require, the commission can order a closed-door hearing or prohibit the disclosure or publication of any testimony, document or piece of evidence, Bantey noted.
The commission listed nine such circumstances, including: "to protect the parties, the witnesses and the public; to protect privacy; to protect against defamation; to protect confidential information, including commercial secrets." Witnesses may also ask that their identity can be protected.
"What witness, especially one who plays a major role within the construction industry, will not ask that his or her identity be protected?" said Gazette executive editor Ray Brassard.
"Between that and the protection of commercial secrets, and unless criminal charges are laid, the public may never learn how certain companies manage their relationship with governments."
The commission invited submissions on its rules after first posting its draft. A consortium of media outlets, including The Gazette, CTV, La Presse and the Globe and Mail, wrote to the commission on March 22 to say it felt the rules went too far. It suggested the commission accept only one exception to the open-hearing principle - that outlined by the Supreme Court since 1994 and known as the Dagenais-Mentuck test. It stipulates a publication ban will only be ordered when it is necessary "to prevent a serious risk to the proper administration of justice," and the beneficial effects of it "outweigh the deleterious effects on the rights and interests of the parties and the public."
On March 29, without any response to the media consortium, the commission announced on its website that it adopted its rules without modifications to the section on closed-door hearings.
"The exceptions set out in the rules to the openness of the commission's hearings go far beyond the criteria set out by the Supreme Court," Bantey wrote.
"Indeed, if the public is to be excluded each time, for example, that a person's reputation might possibly be hurt, or his or her privacy might possibly be infringed ... I suspect secrecy will become the rule and openness the exception at the commission's hearings."
Allowing much of the testimony to remain private hampers public debate and social change, Bantey argued.
"The witnesses may or may not be less inclined to testify, but they have no choice and they are sworn to tell the truth," Bantey wrote to The Gazette in an email.
"As the Supreme Court has said, public hearings prevent perjury by placing witnesses under public scrutiny and promote public discussion of important issues, as we saw in the Gomery Commission."
Reached late Thursday afternoon, a spokesperson for the commission said no one was available to comment until Tuesday.