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G.C. Eglinton

Witnesses Before Legislative Committees. Report of the Ontario Law Reform Commission, Toronto 1981, 129 p.

Ontario Law Reform Commission Report are gold mines for those looking for well-researched distillations of the law. This re port is no exception and directs light into, many dusty corners of parliamentary law and practice. It also serves to bring together the recommendations of overseas studies on Committee practice. Every Committee Clerk, Chairman and adviser would profit from reading it, not least in being forced to face issues and problems so commonly glossed over in the hurly-burly of meeting and report preparation.

It is passing strange that Committees, whose lifeblood in so many cases is the "evidence" of witnesses, should pay s little attention to the application of principle to the gathering of evidence from witnesses. The Law Reform Commission is right to emphasize that a legislative committee i not a court of law, for certainly the manner of proceeding would raise many a judicial eyebrow. The Commission evidently feel that the rights of individual witnesses are not directly put in jeopardy in a committee setting. If, however, they are civil servant their careers may be. The easy informality of some committee questioning can b quite distressing in light of the seriousness of the subject being considered. Bu perhaps the word "evidence" is inappropriate to the presentations of very many who appear before committees to put the point of view of particular interests which will b weighed in some fashion by the committee in the public interest. While many so-called witnesses really appear as advocates before committees, the Law Reform Commission tends to see witnesses in something of an old-fashioned light as persons "called in and examined" on a concrete issue of fact. So often they appear as spokesmen, even if only for a bureaucratic practice or policy.

Those who are troubled by the supposed inability of Committees to compel evidence or the production of papers, or by the claims of civil servants and ministers to crown privilege, or of ministers to a special status as witnesses, will take heart from this report and the ringing declaration by the Commission of the subjection of all to the existing provisions of the Ontario Legislative Assembly Act. On the other hand those who hanker after American-type committee proceedings will find little comfort in this Report. Indeed, the recommendations on the right of witnesses' counsel to intervene and to participate in proceedings by examining and cross-examining witnesses are mercifully restrained. In the operation of any committee, the chairman and the members cannot escape their responsibilities for ensuring fairness, however probing the questioning, and of themselves developing and pursuing methodical and searching questioning. Is it hoping for too much that the actual operation of a legislative committee when hearing witnesses and presentations should be fair, methodical and searching rather than simply reproducing partisan positions taken in the Legislature itself? If so, all the law and wisdom now gathered in this Report will be of use only in the odd case and will make little contribution to the operation of committees. After reading this Report, one really does feel impatient for an equally sober and deliberate study of the ways in which committees can so conduct themselves as to make the best use of the presentations and evidence of witnesses.

The Commission is right to place so much emphasis on the protection and the rights of witnesses, as the counterpart to its firm attachment to their compellability. Several intensely practical suggestions are made, including the very attractive idea that a committee should inform a witness of the duties, privileges and penalties he enjoys or faces. This idea is really so basic one wonders that it is neglected. Why is it that the simplest things are often and usually overlooked? But there it is: the way to make committees work better does not lie through grand restructuring of the committee system, or revolutions in staffing or large doses of parliamentary reform, but by the steady accretion of sensible practices and of changes dictated by the common-place quality of common sense. This Report is an admirable source for any Committee Chairman or member who wishes to be the unsung initiator of reform by stealth, by the introduction of changes in themselves so small and so eminently sensible governments may not take fright.

G.C. Eglinton

Counsel, Joint Committee on Regulations and other Statutory Instruments


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Vol 5 no 2

Last Updated: 2020-09-14