COURT FILE NO.: 324/07

DATE: 20070917

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CARNWATH, SPIEGEL and CAMPBELL JJ.

B E T W E E N:

ONTARIO PROVINCIAL POLICE, ONTARIO PROVINCIAL POLICE ASSOCIATION, CORNWALL COMMUNITY POLICE SERVICE, MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES and THE EPISCOPAL CORPORATION OF THE DIOCESE OF ALEXANDRIA CORNWALL

Applicants

Gina Brannan, Q.C, & Neil Kozloff, for the Ontario Provincial Police

Leslie McIntosh, for the Attorney General for Ontario

Peter E. Manderville & Deborah Templer, for Cornwall Community Police Service

David Rose, for Ministry of Community Safety and Correction Services

William Carroll, for Ontario Provincial Police Association

• and -

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

Respondent

Brian Gover & Patti Latimer for the Respondent

THE ATTORNEY GENERAL OF ONTARIO

Intervenor

Leslie McIntosh, for the Intervenor

HEARD: August 17, 2007

CARNWATH and CAMPBELL JJ:

1The Applicants, pursuant to s. 6 of the Public Inquiries Act, R.S.O. 1990, c. P. 41, apply for an Order directing the Commissioner of the Cornwall Public Inquiry (the "Commissioner") to state a case to this Court.

2The issue is whether the proposed evidence of two witnesses, C2 and C13, falls within the Terms Of Reference of the Inquiry.

3Sections 6 (1) and (2) of the Public Inquiries Act provide:

1Where the authority to appoint a commission under this Act or the authority of a commission to do any act or thing proposed to be done or done by the commission in the course of its inquiry is called into question by a person affected, the commission may of its own motion or upon the request of such person state a case in writing to the Divisional Court setting forth the material facts and the grounds upon which the authority to appoint the commission or the authority of the commission to do the act or thing are questioned. R.S.O. 1990, c. P.41, s. 6 (1).

2If the commission refuses to state a case under subsection (1), the person requesting it may apply to the Divisional Court for an order directing the commission to state such a case. R.S.O. 1990, c. P.41, s. 6 (2).

4The preamble and mandate of the Commissioner under the Order in Council provide:

WHEREAS allegations of abuse of young people have surrounded the City of Cornwall and its citizens for many years. The police investigations and criminal prosecutions relating to these allegations have concluded. Community members have indicated that a public inquiry will encourage individual and community healing;

Mandate.

2. The Commission shall inquire into and report on the institutional response of the justice system and other public institutions, including the interaction of that response with other public and community sectors, in relation to:

(a) allegations of historical abuse of young people in the Cornwall area, including the policies and practices then in place to respond to such allegations; and

(b) the creation and development of policies and practices that were designed to improve the response to allegations of abuse,

in order to make recommendations directed to the further improvement of the response in similar circumstances.

5The anticipated evidence of C12 and C13 relates to an alleged sexual assault on C12 in 1993 when she was age 16 by two males, ages 16 and 17. The alleged assault was reported to the Ontario Provincial Police (the "OPP") the day after it occurred and it is alleged that nothing was done about it.

6This application arises from the dismissal by the Commissioner of a motion by the OPP to have the Commissioner state a case to this Court as to whether the evidence of C12 and C13 was relevant to the Terms of Reference.

7The Applicants and the Attorney General for Ontario (the "A.G."), a party with standing before the Commissioner who supports the position of the Applicants, urge that in the context of the events that gave rise to the Inquiry, the words "historical abuse" have restricted meaning. Indeed, counsel submit that the evidence heard by the Commissioner from experts during the Inquiry support a limitation of the words "historical" and "abuse."

8The Applicants submit that in context, "historical" means acts that occurred a considerable time before they were reported and that "abuse" means acts that were committed by persons in a position of trust or authority. They contend that so interpreted, the mandate under the Terms of Reference cannot reasonably be extended to include "sexual assault" as opposed to "abuse," where the assault was a single incident, not abuse occurring over a period of time and entirely reported contemporaneously with the alleged incident.

9The Commissioner's position is that the term "historical" as set out in the Terms of Reference does not refer to the period of time between the abuse and its reporting, but refers rather to abuse that took place prior to the Order in Council and that the term "abuse" is not limited to acts done by persons in positions of authority or trust.

10All parties agree that evidence that is "reasonably relevant to the subject matter of the Inquiry" should be admitted, and given the public purpose of inquiries, their mandate should be interpreted broadly. See Re Bortolotti et al & Ministry of Housing et al. (1977), 15 O.R. (2d) 617 (C.A.) at p. 624 and Phillipps v. Nova Scotia Commission of Inquiry into the Westray Mine Tragedy, [1995] 2 S.C.R. 97 at paragraph 62.

11The Applicants submit that a sexual assault on a young person by two other young persons that is reported soon after the incident is neither "abuse" nor "historical," as those terms are used in the Mandate. Thus the proposed evidence of C12 and C13 is not reasonably relevant to the subject matter of the Inquiry.

12Counsel for the Applicant and for the A.G. urge that the issue before this Court is not relevance, but jurisdiction. They submit that the jurisdiction of the Commissioner is limited to inquiring into the mandate set out in the Order in Council; there is nothing in the Terms of Reference that would permit inquiry into an allegation of a sexual assault which is neither historical nor abuse as they define them.

13In support of the broader interpretation, counsel for the Commissioner argues that there is no reference in s. 2(b) of the Order in Council to "historical" abuse, which requires the Commissioner "to inquire into and report on the institutional response of the justice system … and the creation of policies and practices that were design to improve the response to allegations of abuse." It is submitted therefore that the proposed evidence may well be relevant to this part of the mandate.

analysis

14An error of jurisdiction arises where the Commissioner has not kept within the subject matter of the Inquiry as set forth in the Order in Council: Re Bortolotti et al. and Ministry of Housing et al. (1977), 15 O.R. (2d) 617 (C.A.).

15In the exercise of its powers under s.6(1) of the Act, the Divisional Court has a supervisory role to perform respecting errors of jurisdiction. In considering whether the Commissioner has exceeded or has declined his jurisdiction, it is necessary to determine what evidence is admissible before the Commissioner: Re Bortolotti, above.

16Any evidence should be admissible before the Commissioner, which is relevant to the subject matter of the Inquiry: Re Bortolotti, above.

17In deciding whether evidence is reasonably relevant, it is necessary to scrutinize carefully the subject matter of the Inquiry as set forth in the Order in Council, which is the governing document (emphasis added): Re Bortolotti, above

18The major submission of the applicants and the A.G. is that the words "historical" and "abuse" have restricted meaning.

19The applicants submit that "historical" means acts that occurred a considerable time before they were reported, and that "abuse" means acts that were committed by persons in a position of trust or authority. A review of the wording of s.2 of the Terms of Reference discloses no support for these submissions. Nothing is said about a lapse of time between the time of the incident and the time of reporting, and nothing is said about the historical abuse being perpetrated by persons in a position of trust or authority.

20The applicants seek to buttress their submission by referencing the evidence of several highly qualified experts in the area of child abuse. It is those witnesses who testified to the meaning of "historical" and "abuse" adopted by the applicants in their submissions. Insofar as the evidence of the experts is concerned, the Commissioner can accept all, part or none of that evidence. He is not bound to accept the definitions of "historical" and "abuse" about which the expert witnesses have testified. It is open to him to place a different construction on "historical" and "abuse" as set out in the Terms of Reference in order to carry out his mandate. The applicants' submissions, in effect, convert the evidence of the experts into findings which the Commissioner clearly has not made. The Commissioner prefers a broader definition.

21If one of the purposes of the Inquiry was to inquire into the institutional response of institutions like the O.P.P., one would have thought that the alleged inaction on the part of the O.P.P. would be grist for the Commissioner's mill. Merely because C12 reported the alleged sexual assault the following day does not, in our view, remove her evidence from the ambit of the Inquiry. Surely the alleged failure of the O.P.P. to respond to her complaint can be considered "reasonably relevant" to the mandate of the Inquiry.

22Writing for the Court of Appeal, Howland J.A. defined "reasonably relevant" as "evidence that in some degree advances the inquiry and thus has probative value", noting:

A similar test was applied by this Court in Re Huston (1922), 52 O.L.R. 444. There a Commissioner … decided to admit certain telegrams, and refused to state a case as to their admissibility. After examining and considering the telegrams, the Court was not prepared to say that the Commissioner erred in admitting them as relevant since he considered that they would be of assistance to him in reaching a conclusion as to the matters which were specifically referred to him.

Re Bortolotti, above.

23Howland J.A. went on to recognize that the test allows for an inclusive approach to admissibility of evidence:

The foregoing test of relevancy means that the gates will be opened quite wide in the admission of evidence. All of the evidence admitted will not, of course, be of equal probative value. It will be the task of the Commission to determine the weight which should be given the oral or documentary evidence presented to it, when making its recommendations and report.

Re Bortolotti, above.

24Indeed, even if there is any doubt as to whether the evidence is reasonably relevant, it must be assumed that the Commissioner will not exceed his jurisdiction:

Even if the content of the notice appears to amount to a finding that would exceed the jurisdiction of the commissioner, that does not mean that the final, publicized findings will do so. It must be assumed, unless the final report demonstrates otherwise, that commissioners will not exceed their jurisdiction.

Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood system in Canada – Krever Commission), [1997] 3 S.C.R. 440 at para. 56.

25We are of the view that the Commissioner is in the best position to assess the relevance of the weight to be attached to the proposed evidence of C12 and C13. We are satisfied the Commissioner will ensure that the evidence will help him in carrying out his mandate.

26For the foregoing reasons we would dismiss the application.

CARNWATH J.

CAMPBELL J.

Released: 20070917

SPIEGEL J.: (dissenting)

27I agree generally with the statement of legal principles set out in the reasons of my colleagues. In my view, however, there is an important distinction to be made between this court's supervisory role in interpreting the terms of the Commissioner's mandate, and the determination of what evidence will be admitted in carrying out the mandate as properly interpreted.

28The Commissioner is to be given a wide discretion in determining the latter but not the former. As Howland J.A. (as he then was) noted in Re Bortolotti at p. 626:

The Commission has a wide discretion, which it can exercise within the framework of the jurisdiction of the Commission. However, it cannot, as I have stated, exercise its discretion so as to narrow or enlarge that jurisdiction.

29I agree with my colleagues that in deciding whether evidence is reasonably relevant, it is necessary to carefully scrutinize the subject matter of the inquiry, as set forth in the Order-in-Council.

30I further agree that there is nothing in the Order-in-Council that limits the term 'abuse' to the meaning proposed by the Applicants and the A.G.

31However, I respectfully disagree with my colleagues' conclusion that "nothing is said about a lapse of time between the time of the incident and the time of reporting" in section 2 of the Terms of Reference. In my view, the term 'historical' in section 2(a) clearly imports such a meaning and limits the scope of inquiry of the Commissioner accordingly.

32Counsel for the Respondent submitted before the Commissioner and this court that 'historical', as used in section 2(a), was merely intended to limit the inquiry to abuse that that took place prior to the date of the Order in Council, namely April 14, 2005.

33I cannot accept this submission. If this were the intention of the drafters it could have easily been achieved by inserting the words "prior to April 14, 2005" after the words "Cornwall area" or the words "which have occurred" after the words "abuse of young people", in section 2(a).

34I accept the submissions of counsel for the Applicants and the A.G. that the term "historical" has been used by counsel for the parties, the witnesses and indeed the Commissioner himself throughout the inquiry in a manner that is consistent their interpretation. Numerous examples are set out in Part V of the factum of the O.P.P., which in my view amply supports this submission.

35It is also apt to note that the Ontario Court of Appeal has employed this meaning of 'historical' in another matter relating to the Cornwall Inquiry. In Episcopal Corp. of the Diocese of Alexandria-Cornwall v. Commissioner of the Cornwall Public Inquiry, the Court of Appeal stated, "The Commission was established to investigate the institutional response of the justice system and other public institutions into allegations of widespread historical sexual abuse of young people in Cornwall" (emphasis mine).¹ The case dealt with an application by the Diocese for judicial review of the decision of the Commissioner to refuse to grant a publication ban with respect to the evidence of an employee of the Diocese who, in the words of Sharpe J.A., "was acquitted of historical sexual abuse charges in 2001"² (emphasis mine). The evidence of the witness in respect of whom the publication ban was sought was an individual who, in 1997, complained to the Ontario Provincial Police that in the 1960s he had been sexually abused by a number of people from Cornwall including the employee in question.

36There are other cases in which the term "historical" or "historic" has been used in a manner consistent with the submissions of the Applicants and the A.G.³

37In my view the interpretation urged by counsel for the respondent would require the Commissioner to inquire into and report on the manner in which the various institutions have responded to sexual assault allegations generally in the Cornwall area prior to April 14, 2005. In my opinion this is a far broader scope of inquiry than the words of the Terms of Reference permit.

38As noted in the reasons of my colleagues, counsel for the Commissioner argued that there is no reference in section 2(b) of the Order-in-Council to "historical" abuse and it was therefore submitted that the proposed evidence may well be relevant to the Commissioner's mandate under section 2(b).

39I accept the Applicants' submission that section 2(b) speaks to "policies and practices" which were implemented by the various institutions as the allegations of historical abuse were made, investigated and prosecuted; in other words, the improvements made by the institutions to respond to "allegations of historical abuse of young people" following upon such allegations.

40I further accept the Applicants' submission that when the mandate states that the Commissioner "shall inquire into and report … in order to make recommendations directed to the further improvement of the response in similar circumstances," it can only be referring to the improvement of the "policies and practices then in place to respond to such allegations" and to the further improvement of the policies and practices that were designed to improve the response to allegations of historical abuse. I also agree that when the mandate speaks of "the response in similar circumstances" it refers to the response of the various institutions to allegations of historical abuse.

41The Commissioner in his ruling rejecting the motion to state a case expressed the view that the Applicants' interpretation of his mandate, "is unduly restrictive and contrary to the spirit of the preamble and to section 3 of the Order-in-Council."

42It is interesting that counsel on both sides of the issue have relied on the preamble to support their arguments. The Respondent has noted that the word 'historic' does not appear in the preamble. The Applicants, on the other hand, submit that the preamble makes it clear that the references in the preamble to "allegations of abuse to young people" and "the police investigations and criminal prosecutions" must be read in light of (i) the events leading up to the calling of the inquiry, which are set out in paragraphs 5-22 of the factum of the O.P.P., and (ii) what was said in the Legislature in relation to those events by Premier Dalton McGuinty, Attorney General Michael Bryant and the sitting member for the Cornwall area, Jim Brownell, as well as in the Attorney General's news release, all of which are set out in paragraphs 34-42 of the factum of the O.P.P.

43I do not propose to comment on the effect of these submissions other than to say that I do not agree to the Commissioner's view that the Applicants' interpretation is contrary to the spirit of the preamble.

44Section 3 of the Order-in-Council, reads "The Commission shall inquire into and report on processes, services or programs that will encourage community healing and reconciliation in Cornwall." While the language of section 3 is admittedly broad, in my view it speaks to the "individual and community healing" that is referenced in the preamble consequent to the events referred to therein.

45In sum, I fail to see how the proposed evidence of C12 and C13 could be reasonably relevant to the Commissioner's mandate, properly interpreted.

46I would therefore grant the application for the stated case and answer the stated case as follows:

Question 1 Is evidence of sexual abuse of a young person reported at or near the time it was alleged to have occurred reasonably relevant to the Terms of Reference given the mandate of the inquiry to "… inquire into and report on the institutional response of the justice system…to allegations of historical abuse … ?"

Answer: No

Question 2 In deciding to hear the evidence of C12 and C13 did the Commissioner properly exercise his jurisdiction or exceed his jurisdiction?

Answer: The Commissioner exceeded his jurisdiction

SPIEGEL J.

Released:

COURT FILE NO.: 324/07

DATE: 20070917

ONTARIO

SUPERIOR COURT OF JUSTICE

(Divisional Court)

CARNWATH, SPIEGEL and CAMPBELL JJ.

B E T W E E N:

ONTARIO PROVINCIAL POLICE, ONTARIO PROVINCIAL POLICE ASSOCIATION, CORNWALL COMMUNITY POLICE SERVICE, MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES and THE EPISCOPAL CORPORATION OF THE DIOCESE OF ALEXANDRIA CORNWALL

Applicants

• and –

Footnotes

1. 1(2007), 2007 ONCA 20, 278 D.L.R. (4th) 550 (C.A.) at para. 1.
2. 2Ibid. at para. 2.
3. 3E.g. M.(J.) v. Bradley (2004), 71 O.R. 3d 171 (C.A.) at paras. 2-3; Curran v. MacDougall, 2006 BCSC 933 at paras. 1-2.