Justice Normand Glaude’s ruling

on the David Silmser Letter 

Thursday 29 March 2007 

(Text from the Cornwall Public Inquiry transcript. Emphasis added.  theinquiry.ca comments interspersed in brackets) 

Justice Normand Glaude: Following the receipt of a letter addressed to me from David Silmser on March 26th, 2007, I asked the parties for their views on a number of issues. 

Firstly, refers how Mr. Silmser’s letter should be handled?  

Second, what, if any impact, the letter has on the alternative process to the cross-examination of Mr. Silmser?  

And third, what, if any participation right should be held by counsel for Mr. Silmser on an ongoing basis? 

After hearing the submissions from parties on these issues, I ordered that the alternative process to the cross-examination of Mr. Silmser should proceed as schedules. 

The following are my reasons for that decision, as well as my decisions in respect of the other two issues.

For those who are not familiar with the circumstances leading up to this ruling, I should begin with some background. David Silmser appeared as a witness before this Inquiry.

Unfortunately, Mr. Silmser’s testimony remains incomplete. He was examined in-chief, and a number of parties had the opportunity to conduct their cross examination of him. Five parties did not have that opportunity. Mr. Silmser left the stand following which counsel for Mr. Silmser provided the Commission with medical documentation indicating that Mr. Silmser was unable to continue with his cross-examination as a result of the negative effects that the cross-examination was having upon his thoughts. His doctor indicated that Mr. Silmser’s return to the Inquiry was not feasible in the foreseeable future.

Mr. Silmser’s unlikely return to complete his cross-examination prompted the parties, and Commission counsel, to engage in discussions as to how to proceed in order to provide those parties who had not had a change to cross examine Mr. Silmser with an opportunity to attempt to, in some fashion, address those issues that they would have put to the witness. An alternative narrative-type process to cross-examination was established. The alternative process will not necessarily be the final word on this matter. The parties agreed to engage in the process but reserve their right to request that Mr. Silmser’s evidence be expunged if they viewed the process to be unsatisfactory. 

As well, I retain my discretion to reject the process and determine how to proceed. 

[What exactly constitutes satisfactory?] 

The alternative process was to begin on March 27th or March 28th of 2007. On March 26th 2007, the Commission offices received a letter from Mr. Silmser. This letter was addressed to me in my capacity as Commissioner of this Inquiry. As I indicated yesterday, it is not my practice to read correspondence that comes into the Commission office, particularly correspondence from witnesses. This practice is consistent with that which we employ as judges hearing matters in court.  

[But ...isn’t this supposed to be an inquiry?  not a criminal proceeding?   And if it is not Justice Glaude’s practice to read correspondence coming into the office how does he go about deciding which correspondence he will or will not read?]  

Mr. Silmser and his counsel, however, indicated to Commission counsel that they wish me to read the letter, and that they were not seeking any confidentially measures in respect to it. That is, as I understand it, they wish that the letter be made public. It was in these circumstances that I asked the parties for their views on how the letter should be handled. 

[An email from Peter Engelmann to Clint Culic seems to indicate that at least at that point in time Mr. Engelmann had no thought or intention of showing the letter to Justice Normand Glaude.] 

Because some parties expressed concerns that the content of the letter might have an effect on the alternative process, I asked for submissions on this issue as well. After hearing those submissions, I decided that the alternative process should continue, and indicated that my reasons for doing so would follow. 

Finally, I asked the parties for their views on what continuing role, if any, should be played by counsel for Mr. Silmser, Mr. Culic. I heard submissions on these issues yesterday, March 28th 2007. 

With respect to the letter, after hearing some preliminary submissions from the parties, I determined that it was appropriate for me to read the letter so as to be in a position to consider the different alternatives that were presented to me as to how the letter should be handled.

As well, I indicated that I would review a summary of the letter that was prepared jointly by a number of the parties. The letter and the summary were marked as Exhibit A and B, respectively, for identification purposes, until such time as I determined what should be done with them. They are also marked as confidential on a temporary basis. 

After reviewing the letter and hearing submissions from the parties, I am of the view that, for a number of reasons, neither the letter nor the summary should become formal exhibits in these proceedings. 

[????] 

First, the letter includes material that is not in evidence. 

[The letter is a victim’s perspective on the on-going institutional response to his allegations. That is irrelevant? At an inquiry mandated to inquire into the institutional response to such allegations?] 

Second, it contains opinions that are not pertinent to the subject matter of my mandate. 

[Which of David Silmser’s “opinions” does Justice Glaude deem irrelevant to his mandate?] 

Third, it purportedly authored by a witness who, for medical reasons, cannot be cross-examined on its contents.

I use the word "purportedly" as some parties question the authorship of the letter, suggesting that Mr. Silmser may have had some assistance in preparing his letter. Whether or not Mr. Silmser prepared the letter, it is signed by him, apparently, and as a result I have no need to explore this any further. 

[The letter is “purportedly” written by David Silmser, and “apparently” signed by him?] 

  For these reasons I see no reason to enter the letter or its summary as a formal exhibit. It will remain as exhibits for identification purposes only. As a result, their contents will not be, and cannot be considered, or form the basis of my report or any factual finding. 

[Because the letter was “purportedly” written and “apparently” signed by David Silmser Justice Glaude will not and can not consider its contents when he writes his research paper on how various public institutions did or did not respond to allegations of sexual abuse?  Does that make one single ounce of sense?]  

With respect to the publication of the letter, while I have chosen not to make it as a formal exhibit, I understand that it may be published elsewhere. 

[The letter is published here on theinquiry.ca] 

I am aware that mainstream and other media may publish materials that may form part of the subject matter of this Inquiry. I am fully in support of freedom of speech, so long as those publishing these materials respect the publication bans or confidentiality measures that I may put in place from time-to-time. 

Now, with respect to the alternative process to cross-examination, some parties express a concern that Mr. Silmser’s letter might have an impact upon how we proceed with respect to the alternative process.

After hearing submissions on this issue, I decided that the alternative process should continue as planned. These are my reasons for so doing. It was suggested to me that the content of the letter raised a number of options; expunging Mr. Silmser’s evidence; asking Mr. Silmser to re-attend; or continuing on with the alternative process as planned. 

As for expunging Mr. Silmser’s evidence, I agree with counsel for Citizens for Community Renewal that, at this stage, it would be a great shame to do so given the great importance of his evidence. I say this however with the knowledge that at the end of the alternative process, that still remains an option for the parties and for me. 

[What makes David Silmser’s evidence of such great import?  If the inquiry was mandated to inquire into allegations of a paedophile ring and cover-up Justice Glaude’s comments here would make some sense.  However, whoever drafted the inquiry mandate took pains to ensure that the commission does not and a can not focus on the persistent allegations of a paedophile ring and cover-up which gave rise to calls for an inquiry.   

And even if Justice Glaude decides to announce at the end of the day that there is no ring and there is no cover-up and that he has neither seen nor heard evidence or testimony that there ever was, his bias on that issue negates anything he has to say on the matter.  Glaude himself made it clear that he had dismissed the “rumour” and “innuendo” swirling around Cornwall on his arrival as false – before one real or “alleged” victim took the stand to testify!  And for those unfamiliar with Cornwall, “rumour” and “innuendo” are, for the powers that be, dismissive synonyms for allegations of a paedophile ring and cover-up.] 

Some parties suggested that Mr. Silmser’s letter led one to question whether Mr. Silmser was able to attend to complete his cross-examination, but was making a choice not to do so. It was submitted that the integrity of the Inquiry process is called into concern when witnesses can freely choose when and to what extent they will participate. 

I am of the view that the Inquiry process is not called into question. The decision as to whether or not a witness is to be compelled to testify or return to testify before this Inquiry, is one that is made by me, as the Commissioner. 

[We have been told that not one of the “alleged”paedophiles of Cornwall wants to take the stand and therefore none will testify.  Why not? ] 

Mr. Silmser, like all witness appearing before this Inquiry, is expected to participate fully in examination-in-chief, cross-examination, and reexamination, unless exceptional circumstances prevent that from happening. In this case, those exceptional circumstances are his documented medical condition. This medical documentation, submitted with respect to Mr. Silmser, indicated that compelling him to testify had worsened his condition and further participation carries a risk of harm. We have received no new medical evidence to suggest that there has been a change in Mr. Silmser’s medical status. 

My reading of Mr. Silmser’s letter only serves to reinforce the validity of the medical certificate that I have already received, that indicates that to require him to re-attend would only be harmful to his health. In my view, Mr. Silmser is not in a position to return and I will not order him to do so. 

[What exactly does Justice Glaude mean by saying David Silmser’s letter “only serves to reinforce the validity of the medical certificate?]  

What is left then is the alternative process to cross-examination. It is the best alternative that we have at this time, and it is for this reason that I choose to proceed on that course. 

[The plea of a victim is inconsequential!] 

Rule 24 of the Rules of Practice and Procedure set out the order for the examination of witness.

Rule 24(c) states that counsel for a witness, regardless of whether or not counsel is also representing a party, will examine last, unless he or she had adduced the evidence of that witness-in-chief, in which case there will be a right to re-examine the witness. 

Mr. Culic is counsel for a witness and retains those rights, in my view, even in the absence of Mr. Silmser. In my view, when a witness is incapacitated and unable to continue to serve as a witness for a valid reason, the incapacity should not extinguish that witness’ rights to participate through counsel.

Given that I accepted Mr. Silmser’s medical documentation, I found that his letter re-enforces the content of that documentation. 

[Again! What exactly does Justice Glaude mean when he says he found David Silmser’s letter “reinforces” the content of the medical documentation?  Is the commissioner, as it seems, dismissing Dave’s letter as the work of a mentally deranged human being?!]   

I believe that he should continue to have participation rights through his counsel in accordance with Rule 24(c). However, that’s provided that Mr. Culic is available immediately upon the conclusion of the alternative process by the remaining parties, and prior to Commission counsel’s opportunity to engage in the alternative process, he will be able to exercise the counsel rights set out in Rule 24(c). 

Given that the alternative process is unique, Mr. Culic’s participation will be limited to a narrative form, consistent with the manner in which the alternative process evolves. 

[Yes indeed.  The alternative process is unique! Very unique!!!]