cbc.ca website (a report aired on CBC radio Monday morning 25 February 2008)

Last Updated: Monday, February 25, 2008 | 12:47 PM ET

The commissioner of a public inquiry into sexual abuse in eastern Ontario was to decide Monday whether to throw out certain evidence the commission has heard and limit future evidence after a ruling by the Ontario Court of Appeal.

'I'm not sure some of them would have put themselves through what they did … had they known that there was a chance they wouldn't get the answers that they came looking for.'— Dallas Lee, victims' lawyer

Justice Normand Glaude was to respond to a ruling issued Jan. 18 by a three-member panel of judges that narrows the mandate of the Cornwall Public Inquiry.

For two years, the inquiry has been looking into the response by the justice system and other public authorities to dozens of allegations of sexual abuse against members of the community in Cornwall and surrounding areas over decades, starting in the 1950s.

Some of the institutions being examined include the police, the Roman Catholic Diocese of Alexandria-Cornwall, schools and the Children's Aid Society.

If Glaude agrees with the court ruling, the evidence of around 20 witnesses who have already testified before the inquiry could be thrown out, said Dallas Lee, a lawyer for a group at the inquiry representing dozens of people who say they were sexually abused.

"There are other arguments going around out there that the mandate isn't necessarily what we thought it was," he told CBC's Ottawa Morning Monday, adding that the ruling affects evidence from nine of his clients.

The court decision was made in response to a challenge led by the Ontario Provincial Police.

The judges ruled the testimony of one of the alleged victims and her mother, who came forward with a sexual assault allegation a day after the alleged incident occurred in December 1993, was outside the inquiry's mandate because it was not "historical."

 The Commission may provide community meetings or other opportunities apart from formal evidentiary hearings for individuals affected by the allegations of historical abuse of young people in the Cornwall area to express their experiences of events and the impact on their lives.

It also ruled that the witnesses' testimony about the victim's treatment by police was not relevant as it involved a case of sexual assault by teenage boys, rather than sexual abuse by a person or people in a position of trust or authority.

The court argued that the provincial Order in Council establishing the commission states that its mandate is to look at allegations of "historical" abuse.

The order refers to "abuse" but does not specify the type or define the alleged perpetrators.

The commission argued unsuccessfully that its mandate covers all allegations made before April 14, 2005, when the commission was established, regardless of how long or soon after the fact they were made.

If Glaude agrees with the court ruling, the evidence from the 20 witnesses affected will not necessarily be stricken from the record, Lee said, but it will not be able to lead to a finding of misconduct. That will be hard on his clients, he said.

"They came here … not only to tell their stories and not only to do what they could to help, but also to get some answers," he said. "And I'm not sure some of them would have put themselves through what they did … had they known that there was a chance they wouldn't get the answers that they came looking for."

Ruling could send commission back to court

Depending on Glaude's response, the court ruling could lead to new motions to dismiss evidence or further court action against the commission.

"The Court of Appeal decision certainly gives institutions and counsel for some of the alleged perpetrators pretty good ammunition to attack what's within the mandate and what's not," Lee said in another interview.

Peter Engelmann, lead counsel for the inquiry, said the court ruling was unexpected, given that, prior to the OPP complaint that led to the appeal ruling, the inquiry had been operating for two years without any objections about its mandate.

"Quite frankly, I was surprised when there were issues being brought given that we had been very clear from the start of the inquiry what we were doing," he said.

The mandate of the Commission is to inquire into and report on the events surrounding allegations of abuse of young people in Cornwall by examining the response of the justice system and other public institutions to the allegations. The Commission will make recommendations to improve the response in similar circumstances. As well, the Commission will inquire into and report on processes, services and programs that will encourage community healing and reconciliation in Cornwall.

Ontario Order in Council establishing the commission:

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.