Public Inquiries/Gov. transparancy questions

The Legal and Political Nature of Public Inquiries

Lines can often become Blurry.

Introduction: 

Public Inquiry’s, from a Canadian perspective, are created to investigate matters that are understood as concerning to the public.  A group of selected people are gathered to perform this duty that is the creation of the executive branch of government, although independent from it.  The words Inquiry, Public Inquiry, and Commission of Inquiry will be used interchangeably to denote that group which is assembled.  The issues of concern, to the Inquiry, usually involve actions or inactions of government, although there is nothing preventing an inquiry into private actions (rarely, if ever done).  This paper will show that their main function of investigation is carried out through a fact-finding process that rests heavily on rules of statute and common law governing the collection of evidence.  This paper will utilize two statues, the Public Inquiries Act 2009, and the Evidence Act 1990 in brief, to outline the procedural rules governing these Inquiries.  Focus will be placed on juxtaposing the exclusionary rules of hearsay and of privilege.  The writings of the Hon. Associate Chief Justice Dennis R. O’Connor of the Ontario Court of Appeal will be utilized to show that there are two main types of Public Inquires: a policy focused or investigative focused based.  This paper will illuminate that at their core both types perform a similar function that is to gather evidence and formulate opinions on certain subject matter.  This paper’s focus is on evidence gathering in the Public Inquiry context and how this evidence gathering manipulates the effectiveness of a Public Inquiry.  This will be illuminated by juxtaposing the development of common law rules against hearsay and the most recent Court rulings on the invocation of privilege involving Public Inquiries.  In conclusion, it will be evident that the recent developments of qualifications by the Courts of both judicial and parliamentary privilege need legislative reform in support of Public Inquiries mandates.   

The co-ordinated effort of every Inquiry is to simply investigate or inquire into certain subject matter of public concern with a purpose of seeking truth.  These ad hoc bodies are often tasked with fact-finding and reporting on a particular past event or policy.  According to the federal statue: Inquires Act the“Lieutenant Governor in Council may by order establish a commission to conduct a public inquiry into a matter that the Lieutenant Governor in Council considers to be in the public interest.”[1] The idea is that the government decides what is in the public interest before an inquiry is convened. This can be done both at a federal and provincial level where statues govern the processes for example provincially in Ontario, section 274(1)(b) of the Municipal Act, 2001 provides for municipal judicial inquiries. In general the staues both ferally and provinvially are not that dissimilar and promote the sme things. The actual purpose of these statues are outined by Jessica McConachie, stipulating that “inquiries, in which focus lies on facts [to] develop recommendations, are not required to adhere to the same strict admissibility requirements. Inquiries do not have the same kind of balance of liberties and interests that impel the law of evidence. The law of evidence is not about determining facts but rather excluding facts”[2].  An interesting summary is provided by Jessica, especially the comment on admissibility, but as it pertains to Inquires, it is simply not understood.  The balancing effect or weight placed on different facts collected by the Inquiry is at the Inquiry's discretion.  Nobody is attempting to introduce evidence to sway the Inquiry position on what is being investigated.  Without a sense of a winning side, a Public Inquiry is unlike the adversarial system truth finding has been described as a judicial search for the truth.    

The commissions of Inquiry decide the method of piecing together different witnesses’ testimony and documentation. Within this process exists the potential of infringing on certain rights and obligations of others, and must be carefully weighed against principles of procedural fairness.  For example, two main statues at the federal level outline certain parameters of procedural fairness for a Public Inquiry: the Public Inquiries Act 2009, and the Evidence Act 1990, along with well-established rules at common law.   According to Jessica McConachie view, in the traditions of the adversarial system “the law of evidence determines what information, documents, and data can be considered by an adjudicator, how it can be proved and the use to which it can be put.”[3] Similarly, the Inquiry will access the accuracy of evidence before it whether it may be conducive to further investigation or dismiss it without an as restrictive consideration of its prejudicial s opposed its probative value.  In contrast, the adversarial system will entertain arguments from opposing sides as to the exclusion of certain facts of this nature for reasons of accuracy, reliability, or prejudice prior to their admittance for their evidential value.  A balancing exists of the rights of those involved is given through notice to the party providing testimony of any potential of civil or criminal liability.  The Inquiry is not engaged in liability of this nature; only in what can be gained from the pursuit of certain evidence to ascertain their own conclusions and from what may be suggestive for potential preventative measures used for government considerations.  Truth in an adversarial system is measuring a finding of liability to a criminal standard of beyond a reasonable doubt and to a civil liability standard on a balance of probabilities.  A public Inquiry uncovering of the truth is measured by what reasonable conclusions may be drawn from a copulation of as much evidence as possible that is relevant to the matter being investigated.  Evidence gathering aids in both systems, yet each engage in their respective unique positions of procedural fairness.   

It has been argued that a Public Inquiry can restore public confidence in the government where it is either lost or strained.  From this perspective, Public Inquiries are often convened to investigate a publicly viewed failure of government policy.  For example, the Walkerton Inquiry, demanding government action or response to the harmful tainted water supply of the town of Walkerton.  Unknown to the people of Walkerton, there was a preventable poisoning of their water supply.  The Public Inquiry was convened in response to the public’s outcry, calling upon the government to uncover what took place.  This is always to be conducted in a sensitive professional manner that could assure the public that it would never happen again.  According to the Hon. Associate Chief Justice Dennis R. O’Connor, who sat on Walkerton Inquiry, “public inquiries present a wonderful vehicle for broad public involvement and participation in issues of public policy.  Indeed, this is one of the great strengths of the inquiry process.  This advantage is particularly true for policy-based inquiries, but also for the recommendation aspect of a fact-finding inquiry.”[4]  Having this participatory nature of a Public Inquiry supports concepts of transparency and accountability.   The idea of accountability and transparency intersect with the public’s ability of direct involvement.  Their interaction with the investigation process supports the ideal of a participatory government from the public’s perspective.   Justice O’Connor finds that a more interactive forum, where the public can express their views openly serves to aid in the process itself.  This characteristic provides for a unique personal interaction between the public and their government.   The Public Inquiry’s grasp of truth is a measurement of the positive public apprehension of the process, which in turn supports public confidence in their government.

Fact-finding is at the core of the Inquires methodology.  Completion of this function through a fair process aid in the process of restoring public confidence in its government.  The Hon. Associate Chief Justice Dennis R. O’Connor describes that a “public inquiry must use its powers (e.g., the power to compel witnesses to give evidence and to produce documents) fairly”[5].  The Inquiry is involved in the exercise of reasonableness into measuring what evidence is required in their investigation as this may lead to the potential of civil or criminal liability.  For example, in the Commission of Inquiry on the Blood System in Canada (and many other inquiries), certain witnesses were given confidential notices warning of potential findings of misconduct to enable them to prepare for and respond to the issues raised in the notice.  Unique to Inquires, complementing its fact-finding ability is that none of the evidence gathered through testimony can be used against that witness in future civil or criminal proceedings.  Ideally, this was well thought out by eliminating the presence of potential liability, witnesses, and documentation alike ought to be more forthcoming to the Inquiry.  It illuminates the purpose of the Inquiry as a purely inquisitorial forum, focused on the issue at hand.  This serves to further aid in the public awareness that the government is working on an appropriate response to the issue at hand and that their concerns are being addressed.   Justice in this sense is served by a Commission of an Inquiries’ projection upon the public that its government is addressing their concerns.  

Public Inquiries inquisitorial nature takes on two forms.  According to the Hon. Associate Chief Justice Dennis R. O’Connor “there are two types of independent inquiries: those that have a mandate to find and report on facts, and those with a mandate to make recommendations for the development of public policy. A third category can be classified as a combination of both”[6].  At its tail end can provide aid to the public and is a form confidence in its government that the problem is being addressed. The executive branch will in either case have the option as to whether or how they will react to this inquiry. Further the Justice extrapolates how important public involvement is to the process, “public inquiries present a wonderful vehicle for broad public involvement and participation in issues of public policy. Indeed, this is one the great strengths of the inquiry process.  This advantage is particularly true for policy-based inquiries, but also for the recommendation aspect of a fact-finding inquiry. The scope for public participation is enormous. In my mind, the exemplar for public participation in inquiries was the Berger Inquiry in the mid-1970s”[7].   The Honorable Justice is advocating for a continued forum for future Public Inquiries to allow for extensive public participation in its process.  There are “six conceptions of ‘the public’, interest or stakeholder groups between whom compromises are to be negotiated; the disaffected who have been harmed by failures or crises; ‘discourse’ or dialogue among informed citizens functioning as experts; citizens as experts by virtue of their lived experience; citizens as non-experts to be educated by the inquiry; and public opinion to be gauged and reflected in recommendation.”[8] Inquiries can conform to different outcomes based on what they are tasked with while attempting to get to the core of a problem or situation before it.  The government is not bound by the recommendations or opinions of the Public Inquiry, yet the Inquiry’s focus and openness to fact-finding place it in the best position to illuminate an issue presented before it.    

Certain exclusionary rules of evidence have been laxed, exclusively to Inquiries in support of their function.  According to Public Inquiries Act 2009 “8 (1) A commission may collect and receive information that it considers relevant and appropriate, whether the information would be admissible in a court and in whatever form the information takes and may accept the information as evidence at the public inquiry. 2009, c. 33, Sched. 6, s. 8 (1).”   An Inquiry must be free to calculate the worth of certain evidence that it is able to obtain.  They must evaluate how it relates to their investigation and where these facts will lead.  If there is no sense of dedication of those involved in the investigative process of the Inquiry then there will be no purpose to it.  A Commission of an Inquiry must maintain dedication to their mandate and in this sense, it is a search for the truth.  Such an expectation of dedication from a Commission of Inquiry is supported by statue.

Over the years, the adversarial system has laxed certain rules of evidence to support its ability to ascertain truth.  An example of this development involves the exclusionary rule against hearsay.  According to Marcie Gray, “the hearsay rule that a witness can only testify to what he or she observed, and not to what someone else told him or her, is the most frequently used, most complex, and most exception-ridden of the exclusionary rules of evidence.1 A hearing, a statement made outside of court and then offered at a court proceeding to prove the truth of its contents, is presumptively inadmissible.2 The law, restricting hearsay, developed over centuries in the common law world, and its rationale is sound: to support the search for truth. With no ability to swear the declarant to an oath, witness their demeanor, or cross-examine them, a decisionmaker cannot accurately assess second-hand evidence. It stands, unchallenged and may cloud, rather than clarify, the search for truth.”[9].  The idea is that certain evidence, if it were allowed, would only serve to distort the overall process of ascertaining the truth.  Hearsay evidence is inadmissible because of the difficulties in testing the reliability of the statement.  In Canada, according to Marcie Gray, over “the past decades, the Supreme Court has moved away from the common law exceptions in favor of a purposive approach to the admissibility of hearsay, the so-called “principled approach” based on necessity and reliability”[10]. The principled approach has “not replaced the common law exceptions but has had an impact on how the exceptions are applied.  The Supreme Court has held: a) A hearsay exception can be challenged to determine whether it is supported by the indicia of necessity and reliability, required by the principled approach; b) In rare cases, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking, and; c) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established in a voir dire.”[11]  Over the years, the rule on hearsay, developed in relation to principles of reliability and necessity, in support of truth finding.  Under certain circumstances, certain evidence, understood as supportive, in one respect, can positively affect the Courts ability to ascertain truth and a sense of its support of a conception of justice.  Unlike Public Inquiries, criminal courts support the principles of the presumption of innocence, a finding of guilt beyond, a reasonable doubt and as in civil court where liability is founded on a balance of probabilities.  A Commission of an Inquiry has a different goal in that its measurement of truth and Justice is measured in its performance of its mandate, as viewed by the public.  There is no bar to be met, such as in comparison to the criminal standard that must conform to the standard of beyond a reasonable doubt.     

The Commission of Inquiry’s motivation is to gain as much knowledge about the situation they are investigating.  Like a trail of breadcrumbs, it proceeds as if one piece of evidence leads to the need of another piece of the puzzle.  During this process of evidence gathering is where conflicting interests or claims of right infringement may arise.  According to Emma Ireton, “where the public inquiry process is well understood, conflicting interests and expectations arise because of the different capacities in which people engage with a public inquiry, which are often difficult or impossible to resolve.”[12] As we have discussed, the adversarial system’s development towards laxing its rules of hearsay was based on what can be a reasonable inclusion verses considerations of it probative value against its potential for prejudice.  A reasonable determination made by a trial judge.  Without the threat of liability, this consideration by the Commission of Inquiry is not necessary.  Therefore, it becomes a reasonable consideration to include hearsay in their investigations in order to see where that evidence that would otherwise be excluded may lead.  There are limitations on some forms of evidence that an Inquiry may gather. One of these controversial limitations is privilege.     

Unlike its adversarial counterpart, where one side is attempting to bring in evidence over the other side in a trial setting, the Inquiry is compelling a certain party to provide evidence.  From this perspective, a party is compelled to provide certain facts that they then may potentially invoke privilege.  Privilege is recognized in both statues of the Public Inquiries Act 2009, and Evidence Act 1990.  According to the Public Inquiries Act sec 8 sub 3 “(3) Despite subsection (1), no information may be received and accepted by a commission that would be inadmissible in a court by reason of any privilege under the law of evidence.  2009, c. 33, Sched. 6, s. 8 (3).”[13]  Similar legislation exists in the Evidence Act sections 30 and 30.1(2)[14].  If the party asked to provide facts, invokes privilege, it may end up in the Courts for this qualification.  This was the case in the Marshall Inquiry; convened to investigate how and why Mr. Marshall was wrongly convicted of murder.  It was the Nova Scotia Supreme Court who overturned the conviction upon new evidence being rendered.  The Court “noted at the end of its judgment that Marshall had contributed to his conviction and that any injustice was more apparent than real.  Marshall eventually received compensation for his lengthy incarceration, but the comments of the Court of Appeal had an impact on the quantum of that payment.”[15]  The Public Inquiry was investigating the cause of the entire fiasco and it is the one who provoked the inclusion of certain fact-finding evidence that it found germane to their investigation.  The public in this case, wanted to know how and why a person could be wrongfully convicted and then subsequently vindicated.  It is entirely clear that part of the purpose of the Inquiry was to inquire into the reasoning of the Court, beyond what was apparent in the Courts written rulings.  The very purpose of written rulings are transparency and public engagement.  From a commonsensical perspective this type of mandate given to the Inquiry would potentially require the Commission of Inquiry to seek subpoenaing, under sections (4) and (5) of the Inquiries Act 1985, the Nova Scotia Supreme Court Justices as witnesses, and why not?  The Justice refused, sought a motion against their requirement to testify and the matter wound up at the Supreme Court of Canada for its determination.  From a standpoint of judicial privilege, the Justices found it unreasonable that the Inquiry would be able to compel them to testify. 

The Supreme Court of Canada’s view was that this endeavour posed a threat to the administration of justice.  Seeing the Commission of Inquiry, as an extension of the executive branch, they found that the Inquiry was not at liberty to question judicial decision making in this manner.  In MacKeigan V Hickman 1989 SCC, the Court found that the “appeal raised two issues.  The first issue was whether ss. 3 and 4 of the Public Inquiries Act could be used to compel superior court judges to testify before the Commission, either with respect to how and why they reached their decision or with respect to the composition of the panel that heard the case.  The second issue was whether the direction to the Commission to inquire into a reference by the Minister of Justice was ultra vires, the province because it is a matter of criminal law and procedure, reserved exclusively to the federal Parliament under s. 91(27) of the Constitution Act, 1867.”[16]  Dealing with the first question, the Court sought to protect anything that had to do with questioning Judicial reasoning by an Inquiry. The Court found that Justices could not be compelled to testify, as this issue was related to the conception of ‘judicial privilege.’  It seems ironic that the Courts that are mandated with unravelling fact in the name of justice would find themselves avoid partaking in a Public Inquiry for the same reason.  Courts are a part of the government and as such accountable to the public.  Therefore, a Public Inquiries ability to restore public confidence is diminished, if Justices can avoid being held both accountable and transparent in this manner.  

It seems reasonable that a Court’s reasoning and rational be subject to scrutiny.  Legal scholars do this all the time, critiquing various Courts written judgements.  According to Cory J in the Courts sole dissenting opinion, “[t]he qualified privilege of judges on administrative matters exists at common law and will clearly apply in most situations.  It must give way, however, when it is necessary to reaffirm public confidence in the administration of justice. In exceptional situations, such as those in this case, that qualified privilege should not and cannot prevail.  The Commission, pursuant to ss. 3 or 4 of the Public Inquiries Act, has authority to compel attendance to pose and receive answers as to the composition of the panel, hearing the Reference and as to the record relied upon by the Court of Appeal in reaching its conclusions.”[17] Our societies conception of justice that supports a Public Inquiry, promotion of public confidence, within a fair process, would concur with the idea that this sort of qualification of privilege is unjustified.  It unreasonably hinders the process of fact finding of the Public Inquiry.  In this sense, Court Justices have an obligation to participate.  The public are the ultimate losers and winners in any Public Inquiry.  Politics and law go hand in hand as it relates to public confidence where neither is inescapable from public scrutiny.  Unreasonably, judicial privilege was used to effectively insulate the Court from public scrutiny and its potential backlash which won out over principles of accountability and transparency. 

This conception of judicial privilege has characteristic similarities to the conception of parliamentary privilege.  In 2022 the premier of Ontario chose not to testify at a Public Inquiry. The premier was contesting a subpoena issued by a convened Inquiry studying the federal government’s use of the Emergencies Act in February 2022 to declare a public order emergency.  Specifically, it was both the premier and deputy premier who avoided testifying by exercising parliamentary privilege.  Hearing the matter, the Federal Court found that “the summonses issued by the Commission to the Applicants are valid.  However, so long as the Ontario Legislative Assembly remains in session, the Applicants may resist the summonses by asserting parliamentary privilege and the Commission cannot take steps to enforce their attendance and compel them to give evidence.”[18] It did not seem to be much to ask the premier to testify and arguably a reasonable request.  According to the Court, “parliamentary privilege protects the operation of the legislature from outside interference, where such interference would impede the fulfilment of its constitutional role. The decision to waive privilege falls within the exclusive authority of the legislature, which is accountable to the electorate and not the courts”[19] This rational does not make sense, the Court is often called upon to engage in settling disputes of the executive branch.  For example, the Courts have constantly engaged themselves in the political realm on questions of Reference, treading unhindered from playing politics[20].  The question still falls back on the premier and the deputy as to why they choose to avoid such a request; especially when the Prime Minister of Canada chooses to sit and take a few questions?  If reasonableness is a true consideration as it pertains to consideration of the admittance of all forms of evidence in both the adversarial and inquisitorial systems, then it must be applied uniformly.  The inquisitorial nature of a Public Inquiry is designed to have a restorative characteristic, and if it is to be a true fact-finding institution, then reasonableness must include common sense evaluations.  It seems clear that political concerns of both cases involving judicial and parliamentary privilege outweighed the public's interests.  Any test between the weight of rights involving the fact-finding capability of an Inquiry must place a high degree of consideration in support of public confidence in their government over the political interests of government actors who are being compelled to participate in the Inquiries function.  

Conclusion: 

Both Judicial and Parliament privileges need statutory revision to support Public Inquiries.  Parliamentary privilege was invoked by the Ford government only to avoid any potential public backlash through their involvement in the invocation of the Emergencies act.  Similarly, the invocation of judicial privilege by the Justices in Mr. Marshalls Inquiry served a similar outcome, to all Court justices from any potential public backlash.  The laws of evidence provide parameters for the attainment of a fair process by which inquisitorial and adjudicative regimes can function within societies’ perception of truth and justice.  An invocation of privilege reflects one of the foundational requirements to restrain government power and the protection of rights in its pursuit of Justice.  The developments of the hearsay exclusion rule over time attest to the Courts need to attain a sense of justice through the search for truth while balancing the interests and rights of others in their performance of their function.  Statutory removal of the exclusion of hearsay evidence, from Public Inquires, reflects this sense of the need to search for the truth within a balancing effect of the rights of others and performance of a Public Inquiry.  Common law development in this respect represents the different functions and purpose between the adversarial system and the inquisitorial nature of Public Inquiries.  Transparency is manifested in the public's ability to be informed of what their government is doing and how it functions in relation to both the adversarial and inquisitorial settings of government functions.  Government actions make impressions upon the public affecting their perception of it.  If the ability of the public to maintain an accountable and transparent government ceases to exist, what do we have left?  To this effect, our institution of Public Inquiries is only as good or effective as its working parts.

Bibliography

1.     Emma Ireton Public inquiries: irreconcilable interests and the importance of managing expectation Published online: 13 Aug 2023  https://doi.org/10.1080/09649069.2023.2243137

2.     Jessica McConachie 10-1-2014 Recovering the Promise of Public Truth: Judaification and the Loss of Purpose in Public Inquiries

3.     Marcie Gray Hearsay in Civil Courts: Simplifying the Rules of Evidence to Enhance Justice for All October 12, 2023  https://www.cba.org/Sections/Civil-Litigation/Resources/Resources/2023/EssayWinner2023Civil#:~:text=By:%20Marcie%20Gray,clarify%2C%20the%20search%20for%20truth

4.     Kirsten Crain and Christine Kucey A Primer on Section 35: Business Records I Noticed Your Evidence: A Practical Guide to ss. 35 and 52 of the Evidence Act  

https://www.canlii.org/en/commentary/doc/2019CanLIIDocs3851#!fragment/zoupio-_Toc3Page2/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoAvbRABwEtsBaAfX2zgGYAFMAc0IBMASgA0ybKUIQAiokK4AntADkykREJhcCWfKWr1m7SADKeUgCElAJQCiAGVsA1AIIA5AMK2RpMACNoUnYhISA

5.     Hon. Associate Chief Justice Dennis R. O’Connor 2022 https://www.ontariocourts.ca/coa/about-the-court/archives/publicinquiries/

6.     Rebecca Jones and Andrea Wheeler Public Law in Canada 2021: Public Inquiries 2021 https://litigate.com/assets/uploads/20211006-115817-4098-Public-Law-Guide-Inquiries.pdf

7.     Public Inquires Act2009  RSO

8.     MacKeigan V Hickman 1989 SCC

9.     A copy of the decision can be obtained via the Federal Court website: https://decisions.fctcf.gc.ca/fc-cf/decisions/en/item/522406/index.do .

10.  Alastair Stark a and Sophie Yates, Public inquiries as procedural policy tools 2021 p 347 https://www.tandfonline.com/doi/epdf/10.1080/14494035.2021.1955485?needAccess=true

Footnotes:

[1]  Inquires Act RSO 

[2] 10-1-2014 Recovering the Promise of Public Truth: Judaification and the Loss of Purpose in Public Inquiries Jessica McConachie p 57  

[3] Ibid, P 47  

[4] Hon. Associate Chief Justice Dennis R. O’Connor of the Ontario Court of appeal,   2022 https://www.ontariocourts.ca/coa/about-the-court/archives/publicinquiries/ 

 [5] Ibid. P 3 

[6] https://www.ontariocourts.ca/coa/about-the-court/archives/publicinquiries/ 

[7] Ibid p 4 

[8] Alastair Stark a and Sophie Yates, Public inquiries as procedural policy tools 2021 p 347 https://www.tandfonline.com/doi/epdf/10.1080/14494035.2021.1955485?needAccess=true 

[9] Marcie Gray, Hearsay in Civil Courts: Simplifying the Rules of Evidence to Enhance Justice for All October 12, 2023 p 1  https://www.cba.org/Sections/Civil-Litigation/Resources/Resources/2023/EssayWinner2023Civil#:~:text=By:%20Marcie%20Gray,clarify%2C%20the%20search%20for%20truth.  

[10] Ibid p 2  

[11] Kirsten Crain and Christine Kucey, A Primer on Section 35: Business Records I Noticed Your Evidence: A Practical Guide to ss. 35 and 52 of the Evidence Act  . P 6  

[12] Emma Ireton, Public inquiries: irreconcilable interests and the importance of managing expectation Published online: 13 Aug 2023 P 223  https://doi.org/10.1080/09649069.2023.2243137 

[13] Public Inquiries Act, 2009, S.O. 2009, c. 33, Sched. 6 

[14] Evidence Act, R.S.O. 1990, c. E.23 

[15] Hon. Associate Chief Justice Dennis R. O’Connor 2022 https://www.ontariocourts.ca/coa/about-the-court/archives/publicinquiries/ 

[16] Case law: MacKeigan V Hickman 1989 SCC, 

[17] MacKeigan V Hickman 1989 SCC 

[18] Federal Court of Canada 2022 

[19] Ibid page 4 

[20] See Succession Reference or when Court on reference answered a question on convention in 1982 pertaining to amount of support of the provincesTrudeau required to enact the Charter.