A judicial inquiry is underway in Hamilton, Ontario with respect to the circumstances regarding a technical report that became “lost” and then was subsequently “found”. This technical report was prepared for the City of Hamilton and contained test results performed by an engineering firm, Tradewinds Scientific, that dealt with friction levels on Hamilton’s the Red Hill Valley Parkway (RHVP). The testing suggested that the friction levels were below a recognized standard. A higher frequency of collisions on the RHVP suggested that the lower friction values were related to the collisions. A judicial inquiry was requested by the City of Hamilton to get to the bottom of who was responsible for the “loss” of the report and what relevance this had. Commencing in January of 2020 the Judicial Inquiry commenced its initial meetings which included the selection of those persons and/or agencies that would be allowed official standing at the inquiry.
In a decision released on February 12, 2020, the Commissioner of the Inquiry, Justice Herman J. Wilton-Siegel rejected several applications from individuals/groups who requested official standing.
Mr. Mirle B. Chandrashekar, a former employee of the City of Hamilton was one of those rejected. Mr. Chandrashekar wanted to address “deficiencies in transparency, accountability and minority representation in the City’s senior management, undue interdependence between politicians and City staff, and nepotism”.
Mr. Malcolm Hodgkiss was also rejected. Justice Wilton-Siegel noted that “Mr. Hodgkiss made numerous broad references to corruption, bid-rigging, illegal operations, environmental damage, and resulting injury to him relating to identified and unidentified public officials, other individuals, and companies. Justice Wilton-Siegel refused to publish Mr. Hodgkiss’ application as it contained “unsubstantiated assertions or topics outside the scope of the Inquiry”.
Justice Wilton-Siegel also rejected the application of six lawyers who claimed to represent the interests of 200 to 250 victims of collisions along the RHVP. This decision was made because the Justice did not accept that the lawyers represented “a broad-based coalition of concerned citizens”.
The application of Ms. Jodi Gawrylash was also declined. She was the victim of a single vehicle collision that occurred on December 3, 2011 at the King Street off-ramp of the RHVP.
Finally the application of Mrs. Belinda Marazzato was rejected. Mrs. Marazzato was the mother of Olivia Smosarski who died in a collision on the RHVP on May 5, 2015. The driver of the car, Jordyn Hastings was also killed in the crash.
With these exclusions Justice Wilton-Siegel allowed only four participants the privilege of participating in the inquiry: The City of Hamilton, The Government of Ontario, Golder & Associates, and Dufferin Construction. None of these remaining participants can be viewed as independent observers without any interest in the outcome of the Inquiry. Yet Justice Wilton-Siegel has denied the applications of similar entities, primarily individuals who do not possess the financial backing possessed by the accepted four.
The issue of hiding this technical report could have affected the safety of everyone using the RHVP through the time of its existence. And its implications go beyond the actions of select individuals in the City of Hamilton. The larger issue is that of municipal and provincial government secrecy that threatens the safety of the citizens that these political entities should be protecting. There will be an attempt to isolate this Inquiry to the specific actions of a few participants while placing a veil over the fact that it is not isolated. Regardless of the specifics of this incident, municipal and provincial government representatives continually fail to properly represent, defend and work for the citizens that elect them. If there was inappropriate behaviour on the part of City staff it was done on the watch of its politicians. It was the politicians’ responsibility to watch over the staff so that both watch over the rights of the City’s citizenry. This is the problem that needs to be fixed. Not only in the City of Hamilton but in much broader areas of Canadian society. The very existence of government in a democratic society must be to serve the people, not the people serving the whims of a select few who decide what the public will know about their actions. When these broad concerns are left to be debated by four, non-independent groups with their own agendas there is an obvious concern that the wider issues at hand will not be allowed to be expressed.
Upon completing the list of exclusions Justice Wilton-Siegel wrote the following comment:
“I acknowledge that, as a result of this decision on participation, the Inquiry does not have any participants who were directly or indirectly affected by accidents on the Parkway, or who speak for concerned or affected citizens as a collectivity. In order to ensure that all issues relevant to such parties are addressed, the Inquiry will take the following steps.”
The steps he referred to included the following:
- Commission Counsel will ensure that all relevant matters are well-canvassed.
- Rejected participants can submit information to Commission Counsel.
- Public forum to be provided and heard as part of inquiry.
- Written submissions invited at end of Inquiry before Judicial report.
- Applications for participation remain open.
There is some solace provided by these plans. Justice Wilton-Siegel noted that rejected applicants could be allowed to be part of a group of concerned citizens that might be given official status should such a group be formed. The Justice referred to such a group on several occasions as noted below:
“The role of a concerned citizens group is different from that of a group of affected individuals. Affected individuals provide evidence of their personal circumstances; a concerned citizens group (which may include affected individuals) typically brings the perspective of the citizenry as a whole on the full range of issues addressed by the inquiry. A group of concerned citizens with participatory rights can provide a helpful check on the participants whose conduct is the subject matter of the inquiry and who are (quite appropriately) acting in their own self-interest. Such groups complement the impartial role of the commission counsel.”
“Applications for participation remain open. The Inquiry’s process would be well-served by having representative voice from a broad-based group of concerned citizens whose focus is on the matters addressed in the Terms of Reference. Such a group would bring the public’s perspective to the subject matter of the inquiry, including on the topics of pavement design and construction, and the good governance of the City. Such a group could include, but not be limited to, individuals who are victims of accidents, whether as injured parties or as family members or friends of injured parties. Accordingly, I invite further application(s) for participation and funding from one or more of such group(s), particularly from any group that has established arrangements with one or more legal counsel that are designed to remove the concerns regarding the focus of the Inquiry…”
Yet Justice Wilton-Siegel did not provide an explanation as to how such groups of concerned citizens could be practically formed. How would individual citizens who possess no elaborate connections be able to make contact with other interested citizens to form such a group? There is no announcement of a plan on Justice Wilton-Siegel’s part to enhance the opportunity of such groups to take form. And, should a group be formed, what guarantee is there that this group would be comprised of individuals who would bring “the perspective of the citizenry as a whole”? Just because they are not part of a group of accident victims does that guarantee that they represent a wide spectrum of the citizenry? Will Justice Wilton-Siegel scan the list of individuals in a group and make investigations about the backgrounds of individuals and what their purpose is in joining the group? If not, what would make these individuals more worthy of participation than those who were directly affected?
And what if this proposed group of individuals decides to narrow its membership to exclude others. Do the excluded others now have no right to participate in the inquiry even though they might represent the general public’s interests better than members of the group that have been allowed to stay as members? Will Justice Wilton-Siegel turn a blind eye to such a development or will he take some active role? Operations are often at work under the table by players with ulterior motives to inappropriately create a seemingly independent group of citizens when in fact resources have been spent to sculpt a group with special interests. If there is no way that Justice Wilton-Siegel can control the development of such special interest groups then why not just relax the participation requirements so that a broad base of opinions/comments can be heard?
Justice Wilton-Siegel made a specific invitation to “any group that has established arrangements with one or more legal counsel…”. This gives the indication that the inquiry will be run by lawyers who will ask all the questions and will direct where the Inquiry will travel in its probes. This excludes the rights of independent citizens to ask those questions and steer the inquiry where those independent citizens believe it should go. And not all independent citizens are the same in their backgrounds of training and experience. Some independent citizens could be experts in the field of inquiry.
There is a problem that lawyers are not technical experts in the areas that will be explored at the Inquiry. While lawyers can do some good homework that is not equivalent to the years of training and experience possessed by technical experts. When lawyers prepare themselves for trial, which is not dissimilar to a Judicial Inquiry, they pick the brains of their experts working with them. The experts provide advice on what questions should be asked, how, and with respect to what type of responses become generated. This is why, on many occasions, lawyers will momentarily stop their presentations, and turn to their experts, whispering for advice. This process is manageable in many instances while in many others it is disastrous. When opposing lawyers in a trial do not understand their technical content and the judge also does not understand it, a trial or Judicial Inquiry can fail miserably. This is why it is advisable for a technical expert to be the one involved in a conversation with another technical expert who is giving testimony. The technical expert who poses the questions will know how to react to another expert’s responses and will know how to follow up with additional questions that will lead to a better understanding of what is being stated. Thus the involvement of select independent citizens who are technical experts in the subject matter of the Inquiry is preferable, as opposed to allowing lawyers the monopoly of leading the process when the lawyers are likely to have limited knowledge of technical issues. If Justice Wilton-Siegel plans to conduct this Inquiry surrounded by non-technical lawyers there is a high likelihood that some issues will not be resolved satisfactorily or if they are, it will take an exceeding long and inefficient time to reach a satisfactory resolution to some technical issues.
It needs to be emphasized that the independence of the Inquiry is left to criticism when it is not independent of the persons or organizations that are being investigated. The terms of reference for the Judicial Inquiry were authored by the very persons, Hamilton’s City Council, who could be implicated in a cover-up of the noted technical report. Yet Justice Wilton-Siegel appears to be staying close to that written script. How can the Judicial Inquiry be seen as properly independent when the bounds of its functioning is limited by a group who could be implicated in the potential cover-up which was the reason for the inquiry’s creation? With a dedicated and unbiased effort Justice Wilton-Siegel can cross this minefield, but it is a precarious one.
There are questions about how many of the Inquiry’s documents and information will be available for the public’s scrutiny. Justice Wilton-Siegel has denied the public’s right to view the comments made by some applicants such as Mr. Chandrashekar and Mr. Hodgskiss. The reasoning why these comments have been kept from the public is not clear. Judging by the short commentary provided by the Commissioner some of these comments appear to be controversial or perhaps accusatory. But if those comments are based on supportable fact they should not be kept from the public simply because they are controversial or accusatory. The public needs to be made aware of the allegations and then decide on its own whether they form some reasonable basis. This Judicial Inquiry cannot be for the sole benefit of Justice Wilton-Siegel’s decisions. He must understand the ultimate purpose of the Inquiry is to inform the public.
As part of a solution Justice Wilton-Siegel has encouraged rejected participants to “communicate with the Commission Counsel if they feel they have information that may be of assistance to the Inquiry”. By this process information is only delivered to the Commission Counsel and kept from public knowledge. The appropriateness of this action is precariously held intact by the public’s belief that nothing underhanded is taking place by keeping information from the public. After the observations that the public has made regarding the apparent efforts made to hide the Tradewinds report it is doubtful that the public will have much confidence in anyone’s assertion that keeping information from the public is to their benefit. It resembles the secrecy of the lost technical report that is the subject of the Inquiry.
These are some of the problems that result when the Commissioner excludes participants who have a specific tale to tell or have been personally affected. It remains to be seen how the Commissioner will decide who will be included should additional applications come forward. An essential foundation to any worthwhile Inquiry, formal or informal, is that it be transparent. When it is an inquiry into the potential secret dealings of individuals and groups it cannot become another series of secret dealings by individuals and groups. It remains to be seen whether the Judicial Inquiry will become an attempt to protect the misdeeds of some individuals or whether it will reveal that there are reasonable explanations for what occurred. And it remains to be seen whether it will be truly transparent and an honest assessment of what took place.
While Justice Wilton-Siegel has been given the official authority to prepare a report that provides the official explanation of what transpired, he will not be the ultimate judge. The ultimate judge will be all the independent citizens who will examine the Justice’s decisions and come to their own private judgment as to whether it is fair and honest. That judgment will be made in private conversations amongst private groups at informal gatherings at coffee shops, family homes and all places where people meet. There will be biased views expressed by some who had already made up their minds before any evidence was heard. But hopefully there will be voices heard from balanced individuals who have thought things through and come to an unbiased opinion much like any formally-appointed judge should.