Designing the police headquarters inquiry

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This article was published 22/02/2025 (397 days ago), so information in it may no longer be current.

On Feb. 11, the NDP government announced the appointment of lawyer Garth Smorang to lead an inquiry into the cost overruns and serious wrongdoing involved with the purchase and renovation of the police headquarters in downtown Winnipeg.

Inquiries are temporary advisory bodies which are appointed by governments, typically after a tragedy or scandal of some kind. Some inquiries involve mainly legal investigations, others are mainly in-depth policy studies, and some are combinations of both. For reasons identified below, the Winnipeg Police Service headquarters (HQ) inquiry seems to be more a policy study than a legal investigation.

The HQ scandal was the most high-profile of a number of controversial development decisions made during a decade of illegal and unethical wheeling and dealing at city hall when Sam Katz served as mayor (2004-2014), supported by his business partner and friend Phil Sheegl, who eventually rose to the top public service position of chief administrative officer.

Only a brief, incomplete background to the HQ case is possible here. There was a RCMP investigation of alleged fraud, bribery and kickbacks leading to a recommendation for criminal charges, a decision by provincial justice officials not to prosecute, and a successful civil suit by the city against Sheegl for accepting a bribe.

The former PC government had refused the city’s request for an inquiry, while the NDP, then in opposition, promised to call one, a promise it fulfilled approximately 15 months after taking office in October 2023.

The scope of the inquiry has been limited to the police HQ scandal, leaving aside other problematic development deals. This makes the process more manageable in terms of time (completion by January 2027) and cost ($2 million). Compared to past inquiries, this might seem like not a lot of time/money, but a great deal of investigative work and legal analysis has already been done.

Generally to avoid drift and delay, it is better to set more specific than general terms of reference for an inquiry. The terms for the HQ inquiry are quite expansive and policy oriented, covering a number of broad areas: the decision-making process, conflict of interest rules, and accountability mechanisms in city government; the soundness of the planning, approval and management of major projects; the previous conduct of the mayor, council and senior administrative officials; and the legislative framework set by the province for city government, including the role of the Municipal Board.

The purpose of the inquiry is not to second-guess the earlier legal judgment call not to prosecute made by independent justice officials. Rather, the focus is on establishing the circumstances which allowed wrongdoing to occur. The further aim is to recommend reforms intended to restore public confidence in the capacity of city government to plan and execute major projects efficiently and ethically.

Opinion surveys elsewhere show that significant delay in creating an inquiry lowers public confidence that it can deliver value. It has been a decade since the HQ scandal, so there may be lost documents and gaps in the memories of key actors.

The commissioner cannot assign blame or recommend prosecution. This clashes with the finding in opinion surveys elsewhere that the public shows more interest in the assignment of blame and less interest in the recommendations meant to prevent a repeat of wrongdoing.

The design of the HQ inquiry is left mainly to Smorang. He is required to issue at least one interim report and must seek government approval for any expansion or extension of his mandate, requirements seemingly meant to prevent drift and cost overruns.

The commissioner must make a number of procedural choices which will affect the efficiency, fairness and effectiveness of the process.

Given the policy orientation of his mandate, he will need to hire more than lawyers to support his work. He may also decide to commission research studies to clarify key concepts in his mandate and to identify best governance practices in other jurisdictions.

Conducting an inquiry which is thorough while respecting the right of of individuals to fair treatment depends on the creation of procedural safeguards and the exercise of wise judgments by the commissioner.

Typically, commissioners rely on co-operation from potential witnesses. Smorang has authority to issue subpoenas to compel testimony. The prohibition on the commissioner recommending prosecution may not reassure key actors that they can safely co-operate with the inquiry.

Legal coercion to obtain documents and testimony can lead to reputational damage, delays and costs which outweigh benefits. To ensure fairness, commissioners have been known to provide witnesses with confidential notices of adverse findings so they can prepare for tough questions.

Permission is granted for both public hearings and private hearings. Satisfying the public that all informed and interested individuals have been heard requires that a number of open hearings be held. They might be complemented by a smaller number of private meetings as a way to encourage reluctant witnesses to come forward.

Mayors, councillors and senior administrators strive for growth which brings increased (mainly property tax) revenues to pay for modern city services. This leads to a close interactive process with the property development and the wider business community. The process of accommodation among public and private elites leads to temptations to break or bend legal rules and unwritten norms of ethical behaviour.

Even if the HQ inquiry does not produce new revelations leading to prosecutions, it could add value by explaining why “hard” and “soft” corruption came to city hall.

Paul G. Thomas is professor emeritus of political studies at the University of Manitoba.