Justice Normand Glaude Dismisses Father Charles MacDonald's

motion for a Publication Ban

Below is the text of Justice Glaude's 17 November 2006 ruling

THE CORNWALL PUBLIC INQUIRY
L’ENQUÊTE PUBLIQUE SUR CORNWALL

RULING ON AN APPLICATION FOR CONFIDENTIALITY RELATING
THE IDENTITY OF FATHER CHARLES MACDONALD

BACKGROUND

Father Charles MacDonald presented a Motion for the issuance of confidentiality measures in anticipation of the upcoming testimony of Mr. John MacDonald, who was allegedly a victim of Father MacDonald.

I heard submissions from counsel for the Diocese of Alexandria-Cornwall and for Mr. Jacques Leduc in support of Father MacDonald’s Motion.

Counsel for the following Parties opposed the motion and made submissions: the Citizens for Community Renewal, the Victims Group, the Children’s Aid Society, the Ministry of Community Safety and Correctional Services, the Ontario Provincial Police and the Cornwall Community Police Service and Board. I also heard submissions from counsel for the CBC.

ANALYSIS

In oral submissions, counsel requested the issuance of a publication ban on the identity of Father Charles MacDonald in relation to the upcoming testimony of Mr. John MacDonald and the issuance of a publication ban on the details of the alleged abuse.

Before beginning the analysis, I wish to say that I believe the request for the issuance of a publication ban on the details of the abuse is premature. As I have indicated in my Ruling on the Jurisdictional Motion, I am not allowed and do not intend to try or re-try criminal allegations and make findings of civil or criminal responsibility. Any evidence on the allegations should be limited to what is relevant to the mandate of the Commission, which is the institutional response of public institutions. The issue of public prejudice of any allegation of abuse should be addressed if and when such evidence is adduced.

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On the request for confidentiality of his identity, I would summarize Father MacDonald’s arguments as follows:

o All proceedings against Father MacDonald were stayed and he has the benefit of an irrefutable presumption of innocence; he should not have his innocence attacked in subsequent legal proceedings, particularly when he may not be able to cross-examine witnesses on the allegations made against him.

o Father MacDonald’s criminal proceedings were the subject of considerable publicity, which caused him irreparable harm; further publicity related to this Inquiry’s proceedings would worsen the prejudice he has already suffered.

o Father MacDonald section 7 rights under the Charter will be violated if his identity is not protected.

o The relevance of Father MacDonald’s identity to the mandate of the Inquiry is absent or speculative as compared to the prejudice that he would suffer if his identity were published or broadcast; the benefits of a limited publication ban on his identity would outweigh any prejudice to the interests of the Parties and the public.

Father MacDonald’s request must be dealt within the Dagenais/Mentuck framework.

He has to demonstrate that the ban is necessary to prevent a serious risk to the administration of justice or to an important interest, because reasonable alternative measures will not prevent that risk.

He pleads that the irrefutable presumption of innocence is part of the administration of justice and as such an important interest to be protected.

He further argues that a judicial stay is tantamount to an acquittal and a declaration of innocence. Other Parties took the position that while a stay is tantamount to an acquittal in law, it does not amount to a declaration of innocence.

It is not necessary for me to determine this last issue. The charges against Father MacDonald were judicially stayed and cannot be revived. There is no

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doubt that Father MacDonald is and will remain presumed innocent of the charges that were stayed.

The presumption of innocence is a cornerstone of the criminal justice system and an important social value. As stated by Dickson J. in Nova Scotia (Attorney General) v. MacIntyre, [1982] 1 S.C.R. 175 at paragraph 63:

“In my view, curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance. One of these is the protection of the
innocent.”

The presumption of innocence and the protection of the innocent are thus important interests that should be taken into consideration in the first branch of the Dagenais/Mentuck test. It does not follow that either will supersede the principle of an open hearing in all cases. This will depend on the circumstances and each case should be assessed on a case-by-case basis. Counsel quoted a number of cases where courts have found that the protection of the innocent trumped the “principle of open hearing”.

In MacIntyre, the majority of the Supreme Court found that where a search warrant was executed and nothing was found, the protection of the innocent and of privacy rights overrode the public access interest. This is assuming that the person subject to the search was not publicly identified beforehand. The majority explicitly stated that when the warrant is executed and something is seized, the considerations were different. In such cases, the general rule of public access should prevail.

As will be discussed below, Father MacDonald’s criminal proceedings have already been the subject of considerable publicity and are comprised in the subject matters that the Government of Ontario has asked me to review.

This makes the situation of Father MacDonald much different than that of the person concerned in MacIntyre.

Counsel also referred to Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991] S.C.R. 671. This was a case where audio and videotapes admitted in evidence at a criminal trial were found to be
inadmissible on Charter grounds by a Court of Appeal. As a result, the

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individual’s conviction was overturned. A journalist subsequently sought access to the tapes.

Stevenson J. for the majority found that an accused person whose conviction was overturned on the basis of exclusion of self-incriminating evidence obtained in violation of Charter rights was innocent and should not be made to bear the stigma resulting from the dissemination of the illegally obtained evidence. In those circumstances, the Court found that the privacy interests of the person involved outweighed the public access rule.

I believe it is important to quote the following excerpt of Stevenson J’s reasons at paragraph 30:

“Those subjected to judicial proceedings must undergo public scrutiny of what is said at trial or on appeal and contemporaneous discussion is protected, but different considerations may govern
when the process is at an end and the discussion removed from the hearing context.”

In the present case, the criminal processes involving Father MacDonald came to an end on May 13, 2002. However, the province subsequently ordered the creation of this Inquiry, which is mandated to review various criminal investigations and prosecutions, including those involving Father MacDonald. This is a new process and a very public one. This makes the current situation much different than the one dealt with in Vickery.

I have previously outlined the importance of openness of public inquiries, and for this one in particular, and quoted Cory J. in Philips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97. In that case, Cory J. stated that even in cases where a person is accused in concurrent criminal proceedings based on the same or related facts, the rule is that the person should be compellable and the evidence public. Those seeking a publication ban in this context must show the following (paragraph 55):

“[…] What must be found in order for relief to be granted is that there is a high probability that the effect of publicizing inquiry hearings will be to leave potential jurors so irreparably prejudiced or to so impair the presumption of innocence that a fair trial is impossible. […]”

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This is a very heavy burden, even in cases where an individual faces unproven charges in concurrent criminal proceedings. This is even though Cory J. recognized that the right to be presumed innocent was “the most single important principle of our system of criminal justice.” (paragraph 104). Public inquiries may adversely affect individuals and have a serious impact on reputations. However, such considerations must cede the way to the public good. The key is to ensure fairness. As Cory J. wrote in Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440 at paragraph 55:

“The findings of fact and conclusions of the commissioner may well have an adverse impact upon a witness or a party to the inquiry. Yet they must be made in order to define the nature and responsibility for the tragedy under investigation and to make the helpful suggestions needed to rectify the problem. […] procedural fairness is essential for the findings of commissions may damage the reputation of a witness […].”

As to the application of section 7 of the Canadian Charter of Rights and Freedoms, I do not believe that this protection is engaged on the facts before me in this case.

Another point raised by Father MacDonald is the effect of the publicity, which is linked to the presumption of innocence.

There is no doubt that Father MacDonald’s criminal proceedings were the subject of considerable publicity.

Father MacDonald filed an affidavit in support of his Motion. He describes the impact that the criminal processes had on his life – loss of vocation, loss of dignity, expenses, depression and anxiety, limitation of movement.

As I indicated in my Directions on Process, a judge must have a convincing evidentiary basis before issuing confidentiality orders. I must say that while Parties adduced no contradictory evidence, portions of Father MacDonald’s affidavit nonetheless raise some questions.

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He indicates at paragraph 7 that he spent thousands of dollars on legal fees. However, as stated in the Affidavit of Bishop Andre Durocher in support of the Diocese’s Standing and Funding Application, Exhibit 10.5, at paragraph 25:

“Legal fees were also incurred in respect of individual priests facing allegations of criminal wrongdoing. A decision was made to fund the defenses of these people because individual priests receive only very small income from the Diocese. […]”

In paragraph 12, he speaks about the deterioration of his health. I do not doubt that the criminal processes may have been very stressful and difficult for him. On the other hand, no medical evidence was adduced about any further medical impact that the current proceedings may have on him. The bulk of Father MacDonald’s Affidavit speaks about the impact he suffered as a result of the criminal processes. He states at paragraph 18 that the commencement of the public Inquiry has aggravated the harm due to the intense media frenzy.

In that regard, I note that no request was made by Father MacDonald until now to protect his identity. Father MacDonald applied for standing and funding, which was granted. His counsel has been present and intervened on his behalf frequently before me. He presented a Jurisdictional Motion. He then sought funding to challenge my Ruling on the Motion before the Divisional Court, which I granted. He then challenged my Ruling before the Divisional Court. The Divisional Court dismissed his Application and an Endorsement was released on September 5th, 2006. He then presented this motion.

Father MacDonald was the subject of additional publicity due to the proceedings of the Inquiry. However, as with all other Parties, he has until now adhered to the principle of openness.

I agree with counsel for the CBC that, on the whole, Father MacDonald has not met his evidentiary burden on the first branch of the Dagenais/Mentuck test. As stated by CBC journalist Mark Blackburn in his Affidavit, the CBC and Radio-Canada have devoted extensive coverage about the events in Cornwall and the charges against Father MacDonald. There was also extensive print media coverage.

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As was put by counsel, I cannot unscramble an egg that was scrambled many years ago. The prejudice to Father MacDonald as a result of publicity is largely already done.

Finally, there is the issue of relevance of Father MacDonald’s identity to my mandate. Even if Father MacDonald had convinced me of the necessity to protect his identity, I would find that the deleterious effects of such an order outweigh the salutary effects.

Father MacDonald argues that his client’s identity is not relevant to the mandate of this Inquiry. As I indicated in my Public Ruling on Confidentiality Measures for Exhibits Marked as “C” on an Interim Basis, relevance is a factor to take into account in the analysis on the second branch of the Dagenais/Mentuck test.

On the issue of relevance to my mandate, the Diocese pointed out to me in its Factum the case of R. v. Morin, (1997) 32 O.R. (3d) 265 (Ontario Court of Appeal). That case dealt with an application to set aside a publication ban on the identity of a jailhouse informant who had testified in the murder trials of Mr. Guy Paul Morin. The ban had been issued at Mr. Morin’s second trial. Mr. Morin’s conviction on the second trial was overturned on the basis of fresh evidence of DNA testing. An Ontario public inquiry was called to inquire into the conduct of the police investigation, the conduct of the Centre of Forensic Sciences and to examine the criminal proceedings involving the murder charge against Mr. Morin.

In R. v. Morin, the Court of Appeal dismissed the application to set aside the ban because, in its view, there was no material change in circumstances. The publication ban had been issued in the first place based on harassment and threats, which jeopardized the safety of the jailhouse informant, and based on expected cross-examination of him concerning his psychiatric records. The Court of Appeal also indicated that the focus of the Guy-Paul Morin Inquiry was not on the identity of the jailhouse informant.

These facts are quite different than those involving Father MacDonald. The Morin case dealt with a request to set aside a ban, which was issued on the basis of considerations that do not apply here. The Court found that there were no material changes in circumstances when the application to set aside the ban was made.

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In addition, while Father MacDonald is not the focus of this Inquiry, he is a central figure in the events, which led to its creation and he has been publicly associated to the issues surrounding the Inquiry for many years.

Counsel for the Citizens for Community Renewal submitted that it would be an affront to the people of Cornwall if the identity of Father MacDonald in connection with the proceedings of this Inquiry was kept confidential. I agree with that submission.

CONCLUSION
Contrary to the criminal proceedings involving Father MacDonald, this Inquiry is not about him nor is it about his guilt or innocence. Father MacDonald is presumed innocent and I am not going to revisit that.

The focus of this Inquiry is the institutional response to allegations of historical abuse made against a number of individuals. Father MacDonald happens to be one of those individuals. I will not make findings of misconduct against him in relation to the allegations that were the subject matter of the criminal charges.

Father MacDonald is represented before this Commission by competent counsel who are protecting his rights and asserting his innocence. As a Party with standing, he has access to an array of tools to protect his rights and to ensure the fairness of the proceedings.

Father MacDonald should rest assured that he has been and will continue to be treated fairly by this Commission, consistent with his presumption of innocence.

Accordingly, I dismiss the Motion.

Dated this 17th day of November, 2006

G. Normand Glaude
Commissioner