CITATION: Ontario Provincial Police v. Cornwall Public Inquiry, 2007 ONCA 673
DATE: 20071003
DOCKET: M35552 (M35551)
COURT OF APPEAL FOR ONTARIO
SHARPE J.A. (In Chambers)
BETWEEN:
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
THE HONOURABLE G. NORMAND GLAUDE, COMMISSIONER THE CORNWALL PUBLIC INQUIRY
Respondent
Gina S. Brannan, Mark Wallace and Peter Manderville for the applicants
Brian Gover and Patricia Latimer for the respondent
Heard: October 2, 2007
ENDORSEMENT
[1] The applicants seek a stay of the ruling of the Commissioner of the Cornwall Public Inquiry that he had jurisdiction to hear the evidence of two witnesses, and the decision of the Divisional Court dismissing an application for an order directing the Commissioner to state a case as to his jurisdiction to make that order, pending determination of an application for leave to appeal the order of the Divisional Court.
[2] The witnesses, designated as “C-12” and “C-13”, are scheduled to testify commencing tomorrow. An outline of their evidence indicates that C-12 will testify that in 1993, at the age of 16, she complained to the police of a sexual assault committed by two teenaged males. Her complaint was made the day after the alleged sexual assault. She and her mother, C-13, will testify that the OPP officers to whom they complained failed to the respond to or act upon the complaint in an appropriate fashion.
[3] The Commissioner ruled that the impugned evidence fell within his mandate to investigate “allegations of historical abuse of young people in the Cornwall area”. The majority in the Divisional Court rejected the argument that “historical” necessarily referred to acts that occurred a considerable time before they were reported and that “abuse” necessarily referred to acts committed by persons in a position of trust or authority. The majority ruled that the Commissioner was in the best position to assess the relevance of the evidence to his mandate. The dissenting judge found that taken to its logical conclusion, the Commissioner’s interpretation of “allegations of historical abuse” would include all allegations of sexual abuse made prior to the establishment of the Commission and that this yielded an unacceptably wide interpretation of the Commissioner’s jurisdiction.
[4] The test for a stay was established in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at para 43:
First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.
[5] The respondent Commissioner takes no position as to the first step. The threshold is a low one and I am satisfied from the dissenting reasons in the Divisional Court that a serious question is raised as to the correctness of the Divisional Court’s decision.
[6] With respect to the second step and the issue of irreparable harm, the applicants submit that permitting C-12 and C-13 to testify in public will impugn their reputation and integrity and that the damage thereby occasioned will not adequately be relieved if the appeal succeeds. The respondent submits that the applicants will suffer no irreparable harm if leave to appeal is granted and the appeal succeeds. The applicants will not be called upon to respond to the allegations and the Commissioner will disregard the evidence in his report. Moreover, the applicants could seek a ban as to the publication of the names of individual officers.
[7] I cannot accept the respondent’s submission. Given prior rulings by the Commissioner, one of which was affirmed by this court, the prospect of a successful motion for a publication ban is doubtful at best. By succeeding on the appeal, the applicants would admittedly take the allegations off the table when it comes to the report, but they would also remove any opportunity they might have to respond. To use the vernacular, once the evidence is given, from the perspective of the applicants’ reputation, “the horse is out of the barn”. In my view the risk posed by a public one-sided version of this complaint to the reputation of the applicants constitutes irreparable harm. See Gaudet v. Ontario (Securities Commission) (1990), 38 O.A.C. 216 (Ont. Div. Ct.).
[8] Finally, the respondent submits that the balance of convenience favours denying a stay on the ground that should the appeal fail, the orderly presentation of evidence before the commission would be disrupted. It is further submitted that C-12 has already suffered anxiety over the uncertainty as to when she is to testify and that granting a stay would occasion her further distress.
[9] It seems to me that the inconvenience to the applicants that would flow from denying the stay and having to face serious but unanswered public allegations of dereliction of duty outweighs any inconvenience that would flow from the need to re-schedule the evidence of C-12 and C-13. Moreover, the inconvenience to the respondent and these witnesses can be mitigated by an order expediting the determination of the application for leave to appeal.
[10] I am not satisfied that the circumstances are so urgent as to require that the motion for leave to appeal and the appeal, if leave be granted, should be heard together. However, the motion for leave to appeal should be expedited. The applicants are to perfect the application for leave to appeal by October 11, 2007. The respondents are to file their responding material by October 15, 2007, and the applicants to file their reply, if any, by October 17, 2007. I direct that the application for leave be placed immediately before a panel for disposition. I leave it to the panel dealing with the leave application to determine, if leave to appeal is granted, the terms of any further stay and the terms, if any, upon which the appeal should be expedited.
[11] For these reasons, the motion for a stay of the order of the Divisional Court refusing to direct the Commissioner to state a case as to his jurisdiction and of the order of the Divisional Court ruling that he has jurisdiction to hear the evidence of witnesses C-12 and C-13 pending determination of the application for leave to appeal is granted.
[12] No order as to the costs of this motion.
“Robert J. Sharpe J.A.”