Liberal bill would allow commission of inquiry to ban public, reporters

Opposition politicians are denouncing a Liberal bill that would give a commission of inquiry the power to ban reporting on its hearings and exclude members of the public from attending.

That provision is contained in the Inquiries Act, a bill introduced this week to replace the existing law of the same name.

"This is a massive change," says PC MLA Ted Flemming, a former attorney general. "This, to me, is outrageous."

The existing law gives commissioners the same powers as a Court of Queen's Bench judge, who can order publication bans and other restrictions on court cases.

The new legislation removes that.

Instead, Section 23 sets out in clear language that a commission can "restrict or prohibit public reporting" on hearings or the publication of information presented at hearings, "exclude the public" from hearings, "exclude a participant" from hearings, and "restrict or prohibit access to information" received at a hearing.

Attorney General Serge Rousselle points out the preceding section, Section 22, required a commission to "ensure that all hearings held by the commission are open to the public" unless Section 23 comes into play.

"The general rule is always to have an open hearing," he told reporters.

Rousselle says other provinces, including Ontario, Saskatchewan, British Columbia, and Newfoundland and Labrador have been updating their laws on inquiries, using an identical national template.

It's an absolute quashing of the fourth estate in my judgement.- Ted Flemming, PC MLA

"This is opening the door to different avenues to the commissioners who can make the best decision," he said. "At the end of the day, one has to remember that the general rule is to make sure it's an open process, but other considerations can be taken into account if there is a need for an exception."

Full public inquiries in New Brunswick are rare.

Two recent examples are inquiries into botched pathology tests at the Miramichi hospital, held in 2008, and into abuse at the Kingsclear reformatory, held in the mid-1990s.

But Flemming points out the change is far-reaching because several dozen other provincial laws give various boards and commissions the same powers as an inquiry as defined in the act.

That includes the auditor general, the child and youth advocate, and the consumer advocate for insurance.

Matthew Pearn, a Fredericton lawyer who sometimes represents media organizations in court, says it's not clear journalists would have the same standing at an inquiry as they do in court to challenge publication bans or other restrictions.

"Closing hearings off completely — I think it would be very cumbersome for a news agency to challenge that," he said.

He also said it's possible corporations appearing before commissions would ask for publication bans by default, and that people involved in commissions might lack the same expertise as judges in deciding whether to grant them.

Green party leader David Coon calls the restrictions "way too broad" and says he wonders if the government is planning to call an inquiry and wants to keep some of the information out of the public eye.

Rousselle says there's no such plan and the bill is part of ongoing work to modernize existing legislation.

Flemming called on the Law Society of New Brunswick, the New Brunswick Bar Association, and media organizations to speak out against the changes. "It's an absolute quashing of the fourth estate in my judgement," he said.