Episcopal Corporation of the Diocese of Alexandria-Cornwall v. Cornwall Public Inquiry, 2006 CanLII 42794 (ON SCDC)

COURT FILE NO.: 06-DV-001262

HEARD: December 7, 2006

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: THE EPISCOPAL CORPORATION OF THE DIOCESE OF ALEXANDRIA-CORNWALL – Applicant v. THE HONOURABLE G. NORMAND GLAUDE, COMMISSIONER OF THE CORNWALL PUBLIC INQUIRY - Respondent

BEFORE: Mr. Justice Robert L. Maranger

COUNSEL: J. Bruce Carr-Harris, David Sherriff-Scott, André A. Ducasse, for the Episcopal Corporation of the Diocese of Alexandria-Cornwall

Colin S. Baxter, for the Responding Party, Canadian Broadcasting Corporation/Radio-Canada

Brian Gover, for the Respondent, the Honourable G. Normand Glaude, Commissioner of the Cornwall Public Inquiry

Richard G. Dearden, for the Ottawa Citizen

Peter Manderville, for the Cornwall Community Police Service Board and for the Cornwall Community Police Service

AMENDED REASONS FOR RULING

This is an amendment to the Reasons for Ruling originally released on December 11, 2006. The amendment occurs above in that Peter Manderville was added as counsel of record.

1This is an Application for Judicial Review of a Ruling made by the Commissioner of the Cornwall Public Inquiry. The Ruling denied the Applicant’s request for a ban on the publication of the identity of one of its employees.

2With respect to the factual background relating to this Application, I adopt as part of my reasons paragraphs 9 to 18, and 21 to 24 of the Applicant’s factum, as well as paragraphs 7 and 8 of the Respondent Commissioner’s factum.

3This Application raises three issues:

(a) What is the appropriate standard of review?

(b) Did the Commissioner err in concluding that the identity of the employee was relevant to the mandate of the inquiry?

(c) Did the Commissioner err in denying the Application for a publication ban respecting the identity of the employee?

Standard of Review

4With respect to the general legal principles applicable to this issue, I adopt as part of my reasons paragraphs 52 and 53 of the Respondent Commissioner’s factum.

5In my view, the appropriate standard of review on this Application is the standard of reasonableness simpliciter. A measure of deference should be afforded to the Commissioner of an inquiry of this type, on this kind of a ruling, due to the balancing of a wide variety of interests. I incorporate as part of my reasons the citation from Pushpanathan v. Canada, [1998] 1 S.C.R. 982 at paragraph 36, and referenced at paragraph 56 of the Commissioner’s factum. Furthermore, on this issue, it seems reasonably clear that what is at issue here is a question of mixed fact and law. The determination of the relevance of the employee’s name to the mandate is more in the nature of a question of fact than law. The application of the Dagenais/Mentuck test necessitates the weighing of facts and applying those to the law. Questions of mixed fact and law tend to support a reasonableness simpliciter standard of review.

6Finally, on this first question some allowance for the Commissioner’s ability to control his own process further suggests the more deferential standard as appropriate.

Relevance to the Mandate

7The mandate of the inquiry is set out in sections 2 and 3 of the Terms of Reference, and fully cited at paragraph 8 of the Commissioner’s factum, already forming part of my reasons. The mandate of this inquiry is to examine the institutional response of the Justice System and other public institutions, including how they interacted with each other in relationship to allegations of abuse of young persons. The Applicant “Diocese” and their response forms part of this investigation.

8The Commissioner ruled that the identity of the employee was relevant to the mandate. The reasons for his Ruling are found at pages 5, 6, and 7 of his decision. In general terms it would appear that he found the identity of the employee to be relevant because of it being interconnected with other complainants; he also found that its relationship to the response by the various institutions made it relevant, and finally it was relevant because of the openness of the inquiry.

9Although this finding of relevancy is certainly debatable, given the mandate and the fact finding mission embarked upon, I am of the view that this assessment of relevance should be afforded deference in the circumstances. Furthermore, given the scope of this inquiry, I cannot say that this Ruling was unreasonable or in error.

Issue of Confidentiality Measures/Publications Bans:

10The Commissioner denied the Applicant’s motion for a ban on publication. In his reasons he specifically referenced the Dagenais/Mentuck test as the applicable test in respect of the determination of the issuance of publication bans. The Applicant’s position is that the Commissioner erred in the Application of the test, particularly in his analysis of the deleterious effects on the rights and interests of an “innocent party” because of the acquittal of the employee in respect of these allegations.

11In my view, the Commissioner in his reasons applied the Dagenais/Mentuck test to the evidence and case before him. He justifiably differentiated those cases where there had been no pre-trial publicity from this case. The extent of the publicity five years ago of these allegations is certainly a factor that the Commissioner could consider in his application of the law. It is noteworthy that in the presentation of this complainant’s evidence, which formed part of the record before this Court, the Commissioner not only highlighted the acquittal of the employee but clearly pointed out that the trial judge believed the employee.

12The Commissioner concluded that the Applicant had not convinced him that the salutary effects of the publication ban outweighed the deleterious effects on the parties and the public. I cannot say after reviewing his reasons as a whole, taken together with the scope of his mandate that he acted unreasonably in denying the relief requested. Given the nature of this inquiry, it seems to me that the concept of openness, and even the appearance of openness, will undoubtedly be at the forefront of the Commissioner’s mind during the conduct of these proceedings. In arriving at his Ruling he had to balance a wide spectrum of interests, including but not limited to: the employee, the complainant, the Applicant, the press and the citizens of Cornwall. These Rulings are not without difficulty and this Ruling was not unreasonable. The Application is therefore dismissed.

13With respect to costs, given the nature of the Application, I am of the preliminary view that there should be a no costs order. However, I will allow counsel involved at the hearing before me, to provide written submissions on the issue of costs of no more than two pages, within 30 days of the release of this decision, failing which there will be no costs.

Mr. Justice Robert L. Maranger

DATE: December 13, 2006

COURT FILE NO.: 06-DV-001262

HEARD: December 7, 2007

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: THE EPISCOPAL CORPORATION OF THE DIOCESE OF ALEXANDRIA-CORNWALL – Applicant v. THE HONOURABLE G. NORMAND GLAUDE, COMMISSIONER OF THE CORNWALL PUBLIC INQUIRY - Respondent

BEFORE: Mr. Justice Robert L. Maranger

COUNSEL: J. Bruce Carr-Harris, David Sherriff-Scott, André A. Ducasse for the Episcopal Corporation of the Diocese of Alexandria-Cornwall