COURT FILE NO.: 357/06

DATE: 2006/09/05

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CARNWATH, SPENCE, sachs JJ.

B E T W E E N:

FATHER CHARLES MacDONALD

Applicant

• and -

THE HONOURABLE G. NORMAND GLAUDE, COMMISSIONER OF THE CORNWALL PUBLIC INQUIRY

Respondent

• and -

CITIZENS FOR COMMUNITY RENEWAL, VICTIMS GROUP, THE MEN’S PROJECT, CORNWALL POLICE SERVICES BOARD, CORNWALL COMMUNITY POLICE SERVICE, ONTARIO PROVINCIAL POLICE and ONTARIO PROVINCIAL POLICE ASSOCIATION

Intervenors

Raj Anand, for the Applicant

Brian Gover and Patricia Latimer, for the Respondent

Peter C. Wardle, Dallas Les and Steven Canto, for the Intervenors, Citizens For Community Renewal, Victims Group and The Men’s Project

John E. Callaghan, for the Intervenors, Cornwall Community Police Service and Cornwall Police Services Board

Gina Brannan, Q.C., for the Intervenors, Ontario Provincial Police (OPP)

W. Mark Wallace, for the Intervenors, Ontario Provincial Police (OPPA)

Leslie M. McIntosh, for the Intervenors, Attorney General For Ontario

HEARD: August 14, 2006

ENDORSEMENT

INTRODUCTION

[1] The Applicant applied to judicially review a ruling of the Commissioner of the Cornwall Public Inquiry. In that ruling, the Commissioner determined that the Commission could hear evidence from the alleged victims.

[2] The application for judicial review was heard and dismissed on August 14, 2006, with reasons to follow. These are those reasons.

ISSUES RAISED

[3] The Applicant submitted that the Commissioner erred in law and exceeded his jurisdiction in three ways:

1. The Commissioner failed to recognize that by hearing specific allegations of criminal wrongdoing he would be embarking upon an inquiry which is in pith and substance a substitute police investigation against Father MacDonald and therefore outside the scope of a provincial commission of inquiry and the Commission’s mandate;

2. The Commissioner failed to recognize that he will have to assess the truth of the allegations – both because it will be necessary in order to determine the adequacy of the institutional response and because the other parties to the Commission could delve into the truthfulness of the allegations – thereby exceeding the Commission’s mandate which prevents it from making findings of civil or criminal responsibility; and

3. The Commissioner’s ruling is unreasonable because the prejudicial effects of the evidence outweighs it probative value, since hearing such evidence will leave Father MacDonald factually guilty in the perception of the public, in a situation where the institutional response can be assessed through less prejudicial means.

Relief Requested

[4] The applicant requested an order in the nature of certiorari quashing or setting aside the Commissioner’s Ruling and a declaration that the Commission has no authority to inquire into specific allegations of sexual abuse or other wrongdoing made by the alleged victims against Father MacDonald. In the alternative, the Applicant requested that this Court direct the Commissioner to place limits in advance on the examination and cross-examination of the alleged victims.

Standard of Review

[5] All parties agreed that the applicable standard of review on this application was correctness.

Has the Commissioner’s Ruling Converted the Inquiry Into One that is in Pith and Substance a Substitute Police Investigation?

[6] There was no dispute that the Commission is validly constituted and that its mandate is intra vires the provincial government. The Terms of Reference setting out that mandate require the Commission to inquire into and report on the institutional response of the justice system and other public institutions to allegations of historical sexual abuse against young people in Cornwall. The Commissioner found that “the calling of alleged victims is essential in order for the Commission” to fulfill its mandate. However, he also made it clear that while the Commission would be reviewing “criminal allegations, investigations and criminal proceedings, it is not allowed and does not intend to try or re-try the cases and make findings expressing an opinion as to criminal or civil responsibility in law”.

[7] There is no question that if a provincial inquiry is or becomes what amounts to a substitute criminal investigation, then it would be intruding on matters that are exclusively within federal jurisdiction, namely criminal law and procedure. However, it is equally true, as this Court noted in Jacobek v. Toronto (Computer Leasing Inquiry), [2004] O.J. No. 2889, that a provincial inquiry that is:

in pith and substance directed to matters within provincial jurisdiction may proceed despite the possible and incidental effects on the federal criminal power. An otherwise validly constituted provincial or municipal inquiry will not be rendered ultra vires if, as part of its larger mandate, it investigates or makes findings of misconduct, provided that such findings are necessary to fulfill the purpose of the inquiry, as described in the terms of reference, or properly relevant to the broader purposes of the inquiry, as set forth in the terms of reference. (para. 18, cites omitted)

[8] In this case, unlike in Jacobek, the Commissioner has made it clear that he will not be making any findings of misconduct against the Applicant. The only adverse comment that could be made about Father MacDonald would be that, as an employee or official of a public institution, he failed to properly respond to allegations of abuse. However, the Applicant’s concern is that if the alleged victims are allowed to testify as to the specific allegations they made against Father MacDonald, assessing the institutional response to these allegations will inevitably lead to an assessment of the merits of those allegations. According to the Applicant, if the Commissioner finds that a particular complainant’s allegation had merit and that complainant has alleged that he was sexually abused by the Applicant, then the Commissioner will effectively be determining the civil or criminal responsibility of the Applicant for a particular crime, which he cannot do.

[9] In making his submission, the Applicant primarily relied on two decisions – Re Nelles and Grange, 46 O.R. (2d) 210 (C.A.) and Starr v. Houlden, [1990] 1 S.C.R. 1366. In Nelles, the commissioner stated a question for the court asking whether he could express his opinion as to whether the death of any child was the result of the actions of a named person or persons. In that case, as in this, the Order in Council that established the inquiry limited the commissioner by forbidding him to express any conclusion of law regarding civil or criminal responsibility for a death or deaths. The Court of Appeal found that if the commissioner made findings of fact that a particular person caused a particular death, then this finding or conclusion “would be considered by the public as a determination” and, “if no charge is subsequently laid, a person found responsible by the Commissioner would have no recourse to clear his or her name” (p. 220).

[10] In Starr, a Commission of Inquiry had been appointed by the Province of Ontario to inquire into certain allegations of an improper relationship between Ms. Starr and any corporation or person she represented or acted for and any elected or appointed government official. The majority of the Supreme Court of Canada found that the Inquiry’s terms of reference exceeded the Province’s jurisdiction as, in effect, it was to serve as a substitute police investigation and preliminary inquiry into a specific offence under the Criminal Code alleged to have been committed by one or both of two named individuals. In making this finding, Lamer J., writing for the majority, noted at p. 1402:

The terms of reference name private individuals and do so in reference to language that is virtually indistinguishable from the parallel Criminal Code provision. Those same terms of reference require the Commissioner to investigate and make findings of fact that would in effect establish a prima facie case against the named individuals sufficient to commit those individuals to trial for the offence in s.121 of the Code. The net effect of the inquiry, although perhaps not intended by the Province, is that it acts as a substitute for a proper police investigation, and for a preliminary inquiry governed by part XVIII of the Code, into allegations of specific criminal acts by Starr and Tridel Corporation Inc. While public officials are involved within the scope of the inquiry, the investigation of them is defined in terms of whether they had dealings with Ms. Starr or Tridel Corporation Inc., and is therefore incidental to the main focus of the Commissioner’s mandate.

[11] The Applicant submitted that in this case, the Commissioner’s ruling would:

a) put the Commissioner in the position where he will be making findings of fact as to whether a particular person committed a particular act as in Nelles and;

b) have the effect of turning the Commission of Inquiry into a substitute police investigation as in Starr.

[12] With respect to the analogy to Nelles, as already indicated, the Commissioner was clear that his intention was not to make specific findings of wrongdoing as against the Applicant or any of the other alleged perpetrators of abuse. Such findings, if any, would be as against the members of the justice system or the other public institutions that received and dealt with the allegations. Secondly, even if in assessing the response of the justice system or other institution to a particular complaint, the Commissioner will be required to comment on how credible the complaint and the complainant appeared at the time, this is not the same thing as making a finding that a particular allegation by a particular complainant was true. Thirdly, unlike in Starr and in Nelles, it cannot be said that the Commissioner’s Ruling will have the effect of turning the inquiry into an investigation of the Applicant’s alleged criminal conduct. The Commissioner was clear that this was not his mandate or his purpose. Rather, his purpose was to investigate the response of the justice system and other public institutions to allegations of sexual abuse against young people in Cornwall. In some cases, investigating that response, may entail hearing from the young people themselves – both as to what they said, when and to whom and as to the responses they say they received from the people they complained to. Assessing a particular official’s response to their complaints may involve assessing how credible the complaints and the complainants appeared at the time. Hearing from and seeing a particular complainant may assist in this task. Whether this will be necessary in every case, given the other material that is available, is not clear. That is why the Commissioner, quite appropriately, determined that he would decide, on a case by case basis, whether to receive such evidence, depending upon whether it is relevant to his mandate, and subject to appropriate restrictions having regard to the “serious concerns” expressed by the Applicant.

Will the Commissioner’s Ruling Make It Necessary to Assess the Truth of the Allegations?

[13] The Commissioner noted that Commission Counsel had indicated to the Applicant and other parties that any statements by the alleged victims would not be tendered for the truth of their contents. However, the Applicant argued that in cases such as where the complainant made an allegation of abuse to the police, and the police investigated and determined that there was no basis to lay charges, the Commissioner will necessarily have to assess the validity of the complaint in order to assess the institutional response. This, in turn, will lead the Commissioner into making determinations concerning Father MacDonald’s civil or criminal responsibility.

[14] We accept that part of the Commissioner’s mandate may include assessing whether the information available to the police or other authorities should have warranted a different response. However, as already indicated, we disagree that making such an assessment will require the Commissioner to make a determination as to the truth of the complaint. Rather, the Commissioner will have to ask, “based on the information available, what should they have done”?

[15] As part of his mandate the Commissioner will be examining many decisions that were made in response to the allegations. These may include whether or not the police decided to lay criminal charges and whether or not the Crown decided that a prosecution should be conducted. In examining those decisions he will be required to do so from the point of view of whether they were justifiable on a reasonable basis, given the obligations of the particular authorities at the time. This will necessitate hearing evidence as to what was done and why. It may also include assessing whether, given what they knew at the time, the police or the Crown acted reasonably when they made decisions as to whether or not a particular allegation was credible enough to warrant the laying of a charge or the commencement of a criminal prosecution. Assessing the reasonableness of these decisions will not require the Commissioner to make findings that the allegations were true and will certainly not require him to make a determination that the Applicant was criminally or civilly responsible.

[16] The Applicant also expressed concern that while the Commissioner may appreciate the limits of his mandate, other counsel may not. However, it is not counsel who will decide what evidence will or will not be heard. It is the Commissioner. He has stated the purpose for which the evidence is to be heard and has a clear appreciation of his mandate.

Will the Prejudicial Effect of the Evidence Outweigh its Probative Value?

[17] The Terms of Reference of the Inquiry require the Commission to “ensure that the disclosure of evidence and other materials balance the public interest, the principle of open hearings, and the privacy interests of the person(s) affected, taking into account any legal requirement”. These terms make express the balancing act required in any public inquiry. As noted by Binnie J. in Consortium Development (Clearwater) Ltd. v. Sarnia (City), 1998 Can. L11 762 (S.C.C.) at para. 26:

The power to authorize a judicial inquiry is an important safeguard of the public interest, and should not be diminished by a restrictive or overly technical interpretation of the legislative requirements for its exercise. At the same time, of course, individuals who played a role in the events being investigated are also entitled to have their rights respected. The basic issue in this case is how a balance is to be struck between these two requirements.

[18] The Applicant argued that hearing evidence from the alleged victims would have an adverse effect on him and his reputation – potentially leaving him factually guilty in the perception of the public. In his submission, the risk of this effect is out of proportion to the need for the Commission to hear the evidence, especially where the institutional response can be assessed through less prejudicial means.

[19] First, we agree with the Commissioner that the evidence of the alleged victims is essential to properly assess the response of the justice system and other public institutions to the allegations they made. Second, the Commissioner was clear that he was alive to the fact that in certain cases it may be possible to introduce that evidence without calling the alleged victims to testify. Requiring him to decide in advance how a class of clearly relevant evidence will be heard would be to unreasonably limit his discretion and to, in effect, require him to exercise that discretion in a vacuum. Third, the Applicant is not without any tools to safeguard his reputational interest. He has been granted standing and, as such, is entitled (among other things) to documentary disclosure, advance notice of documents proposed to be introduced in evidence, advance provision of statements of anticipated evidence of witnesses, the right to object to evidence, the right to make submissions with respect to relevance, the right to cross-examine witnesses on matters relevant to the basis upon which the standing was granted, the right to request that a portion of the hearing be conducted in private, the right to request orders prohibiting disclosure, public disclosure, publication or broadcast of any testimony, document or evidence, or the editing of documents to remove sensitive and/or unnecessary information and the right to make opening and closing submissions.

[20] As the following excerpt from the Commissioner’s Ruling demonstrates, the Commissioner is aware of the Applicant’s concerns and alive to his obligations to balance those concerns against the responsibilities he has to fulfill his mandate. Thus, we do not see it as either appropriate or necessary to fetter his discretion in that regard.

The concerns brought by the Applicants were serious ones, but as indicated, do not affect the jurisdiction of the Commission to call alleged victims for the purposes set out by Commission Counsel. The Applicants are entitled to a fair process and can avail themselves of the rights afforded to parties with standing. Any specific concerns of the Applicants will be dealt with on a case by case basis; applying the provisions of the Public Inquiries Act, the Order in Council and the Rules.

CONCLUSION

[21] For these reasons the application was dismissed. The parties agreed in advance that there would be no order as to costs.

CARNWATH J.

SPENCE J.

SACHS J.

Released: