THE CORNWALL PUBLIC INQUIRY
L’ENQUÊTE PUBLIQUE SUR CORNWALL

PUBLIC RULING ON CONFIDENTIALITY MEASURES FOR
EXHIBITS MARKED AS “C” ON AN INTERIM BASIS

BACKGROUND

On October 31, 2006, I issued my Directions on Process regarding
Requests for Confidentiality of Victims’ or Alleged Victims’ Identities.

Following the issuance of those Directions, I heard submissions in the
public hearing and in camera on November 2nd, 8th and 9th, 2006 with
respect to specific confidentiality requests in relation to exhibits
marked as “C” on an interim basis throughout the evidentiary phase
of the Inquiry. The exhibits in question are: 71A, 71B, 71C, 72, 76,
84, 90, 93, 94, 95, 96, 98, 99, 102, 104, 105, 108, 110, 115, 120, 121,
124 and 125. Commission counsel also pointed out that exhibit 87
was mistakenly introduced as a “P” exhibit and should be considered
in this Ruling.

On November 7, 2006, I heard submissions from counsel for the CBC
and Radio-Canada with respect to the confidentiality requests. On
November 15, 2006, I heard replies from counsel for Parties with
standing before this Commission to the submissions made by
counsel for the CBC and Radio-Canada.

All confidentiality requests until now were grouped until a process
was developed to deal with them. Future confidentiality requests will
hopefully be addressed prior to witnesses testifying.

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ANALYSIS
For ease of understanding, I have grouped the exhibits into
categories based on the grounds for which confidentiality measures
have been requested.

Child Abuse Register
Counsel for the Children’s Aid Society of The United Counties of
Stormont, Dundas & Glengarry argued that portions of exhibits 99
and 105 should never have been disclosed and should at a minimum
be subject to a publication ban because the information pertains to
the Child Abuse Register.

Counsel relied on paragraph 75(6) of the Child and Family Services
Act, R.S.O. 1999, c. C.11, which provides as follows:

75(6) Despite any other Act, no person shall inspect, remove,
alter or permit the inspection, removal or alteration of
information maintained in the register, or disclose or permit
the disclosure of information that the person obtained from the
register, except as this section authorizes. [Emphasis added]

Counsel argued that although the information did not come from the
Register, it was information that his client provided to the Register,
which would then be covered by paragraph 75(6) of the Child and
Family Services Act.

As I understand it, the Child Abuse Register contains information
verified by a Children’s Aid Society that a child is suffering, may be
suffering or may have suffered abuse which was reported by the
Society to the Director in charge of the Child Abuse Register. The
information reported to the Director is organized in a specific way
under the Regulations adopted under the Child and Family Services
Act, and the recording of information in the Register has specified
legal consequences. Information which may appear in the Register
but that is maintained outside the Register does not attract the same
consequences.

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I believe that the purpose of paragraph 75(6) of the Child and Family
Services Act is to preserve the integrity and confidentiality of the
information maintained or kept in the Child Abuse Register. The
information in question does not come from the Register and its
release would not affect the Register. Those documents were
correctly provided to the Commission and I see no reason not to
make them public.

Medical Records
Part of exhibit 95 contains psychiatric and psychological reports
pertaining to Mr. André Lavoie, who testified before the Inquiry.

These documents contain very intimate and personal matters
pertaining to the condition of Mr. Lavoie. They were used in crossexamination
for limited purposes. No one has supported the view
that this information is otherwise relevant and that it should be made
public. The salutary effect of confidentiality orders to protect the
privacy interests of Mr. Lavoie would clearly outweigh any deleterious
effects.

Counsel for the CBC and Radio-Canada argued that relevance was
not part of the test for openness. However, he subsequently clarified
that relevance may be taken into account in the analysis on the
second branch of the Dagenais/Mentuck test.

I agree with this latest submission. If information is not relevant or is
only marginally relevant to the mandate of the Inquiry, the deleterious
effects of a confidentiality measure applicable to such information
should be limited. In my view, the “open court principle” should apply
to information that is relevant to the proceedings of that court.

As such, the portion of the exhibit pertaining to these reports will be
subject to a publication ban and will remain confidential.

It should also be noted that on October 17, 2006, I found that exhibit
C-90, the psychiatric records of Mr. Alain Seguin, were to remain
confidential for the same reasons.

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Specific requests for confidentiality measures
Counsel for the Victims Group has identified two exhibits that contain
information of a sensitive nature. As such, counsel requested the
issuance of a publication ban on the information identified in exhibit
104 and exhibit 110 and the editing of certain information for the
purpose of public consultation.

I believe that some of the information in these documents is intimate
and personal and that the public disclosure of such information would
seriously jeopardize the privacy interests of the individuals involved.

The salutary effect of confidentiality orders in this instance outweighs
any media or public interest in the publicity of such information. The
details of the abuse suffered by victims or alleged victims may be
relevant to my mandate if they inform the response of public
institutions. I am not otherwise interested in the graphic description
of the abuse and this should be of limited public interest.

As requested, I will therefore issue a publication ban on this
information in both cases. I will also order the editing of specific
references made in camera for exhibit 104 and 110.

Victims or alleged victims who have communicated their desire
for confidentiality measures to be adopted

Counsel for the Ministry of Community Safety and Correctional
Services made representations with respect to exhibit 71A. Counsel
was approached by an individual, a victim of Mr. Gilles Deslauriers,
whose name appears in that document. Counsel indicated that this
person did not want his name made public at the Inquiry, or to have
any documents that could identify him made available to the public
through the Inquiry.

Further, the Honourable Justice Paris issued a publication ban on
September 15, 1986 on information identifying the complainants in
the case of R. v. Deslauriers. This publication ban is still in force.

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Counsel for the Ministry also made representations with respect to
exhibits 72 and 76 in relation to the name of this person and
identifiers.

Counsel for the Ministry sought the issuance of a publication ban to
protect the identity of those individuals and identifiers, and that the
portions of the exhibits that may tend to identify those individuals be
edited for the purpose of public access.

Being identified as a victim, alleged victim or potential victim of sexual
abuse is a highly intimate and personal matter, particularly when such
information was never made public.

I have no doubt that the release of information that could identify this
person as a victim of sexual abuse would pose serious risks to his
privacy interests. As it stands, this person will not be a witness
before the Inquiry. In the circumstances, the disclosure of his identity
would cause more prejudice to him than any good to the public.

Counsel for the CBC and Radio-Canada argued that the identities of
victims or alleged victims will always be relevant and should be made
public. I disagree. This particular person’s situation is not at issue
before this Inquiry at this point, and the information concerning him is
only marginally relevant and of limited public interest.

No other counsel, including counsel for the CBC and Radio-Canada,
made specific objections with respect to the identifying information.
However, counsel for the CBC and Radio-Canada, as a matter of
principle, proposed a test for the protection of identifying information:

“The ban should be limited to prohibiting publication of
information from the inquiry that would enable a reasonable
member of the public, unacquainted with the victim or alleged
victim, to identify him/her as a victim or alleged victim of sexual
abuse.”

I gather from the submissions of counsel for the CBC and Radio-
Canada that the “reasonable member of the public” should not be a
member of the Cornwall community, but a member of the public at
large.

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I agree with Mr. Wong that the test should be an objective one. A
publication ban or confidentiality measure is not directed at close
family members or work colleagues. It is directed at the public in the
broader sense. Therefore, the protection should be directed at
information that could enable a reasonable member of the public to
identify the victim or alleged victim.

However, I believe I have to take into consideration the particular
context in which this Inquiry is proceeding. The events under scrutiny
occurred mostly in Cornwall. Most of the actors have been, at one
point or another, living and/or working in Cornwall. The media
coverage until now has been primarily focused in the Cornwall area.

As stated in R. v. Mentuck, [2001] 3 R.C.S. 442 at paragraph 36, the
issuance of a publication ban “requires the judge not only to consider
whether reasonable alternatives are available, but also to restrict the
order as far as possible without sacrificing the prevention of the risk.”
In other words, while I agree that a confidentiality order should be
carefully tailored, this should not be done in such a way that would
render the protection inefficient or meaningless.

I have to take into consideration the potential effect of the publicity.
In this context, geographical and local considerations have to be
weighed and taken into account in determining which identifying
information should be protected.

Counsel for the Diocese made reference to the case of R. v. Binns,
(2003) 19 C.R. (6th) 197 in support of the proposition that the public,
in a specified area, may be able to identify victims if the scope of a
publication ban is too narrow. I accept those submissions.

The identifying information concerning this particular person identified
by Mr. Rose, should be subject to a publication ban, which should be
limited to information that could reasonably identify this person in the
Cornwall area.

As to counsel’s further request to edit these exhibits for the purpose
of public consultation, I am prepared to grant it. I will also issue a

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publication ban on this information. I take into consideration the fact
that the name of this person was never made public before the
Inquiry, the limited relevance of the information to the Inquiry and the
specific situation of this person.

Victims or alleged victims who have not communicated with
Commission counsel or other counsel their desire for
confidentiality measures

With respect to exhibits 71A, 71B, 71C, 72, 76, 84, 87, 93, 94, 96, 98,
102, 108, 115, 120, 121, 124 and 125, representations were made for
the issuance of publication bans on names of victims and alleged
victims and identifiers. These individuals have not been in contact
with Commission counsel or counsel for the Parties and have not
sought the issuance of confidentiality measures for one reason or
another.

It should be noted that in the case of exhibits 71A, 71B, 71C, 76 and
94, there are outstanding publication bans issued in criminal
proceedings applicable to the identities of some of the victims and
alleged victims that are still in force.

Commission counsel took the view that a publication ban would be
sufficient to ensure protection. Other counsel for Parties took the
view that, in addition to a publication ban, an order should be issued
to edit the information for the purpose of public consultation.

As I indicated in my Directions on Process, the victims or alleged
victims who have not come forward should not be on a different
footing than the others. It has been established before the Inquiry
that the revelation of child abuse after years of silence may have
devastating consequences, let alone the public revelation of such
abuse. I have a duty to ensure the protection of those individuals.

As it stands, those individuals are not expected to be the focus of this
Inquiry. Their names and identifiers are marginally relevant to my
mandate at best.

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Therefore the names of the victims and alleged victims and identifiers
will be subject to a publication ban, which should be sufficient to
ensure the protection of that information.

ISSUE OF WAIVER
Counsel for the CBC and Radio-Canada argued that individuals
subject to confidentiality orders should be able to waive this
protection without the need for a further order. I gather from the
submissions of counsel that this should be possible whether a person
spoke to the media before or after the order.

Counsel indicated that the Youth Criminal Justice Act contained a
regime under which a child or young person who is a victim or a
witness may render an automatic publication ban on the person’s
name and identifiers inapplicable if the person publishes or causes
the publication of the information after he or she reaches the age of
18.

By contrast, under section 486.4 of the Criminal Code, in criminal
proceedings dealing with sexual offences, publication bans on
information that could identify the complainant or a witness may be
issued and shall be issued in certain circumstances, upon request.
Such bans may only be lifted upon further request to the Court, with
the consent of both the Crown and the accused; see R. v. Adams,
[1995] 4 S.C.R. 707.

While the protections in those two regimes apparently have similar
purposes, the legislative schemes are quite different. I am not here
to conduct a policy analysis or to legislate. Suffice it to say that I do
not believe that the issuance of “waivable” confidentiality orders
would be in the interests of victims or alleged victims, the media and
the public.

Certainty and clarity are required. The protections afforded to victims
and alleged victims may be of critical importance to their well-being.
If one wishes a confidentiality order to be lifted, a proper request
should be made either by the person or through counsel, and a
material change in circumstances must be argued.

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CONCLUSIONS
I wish to thank counsel for their helpful submissions. As officers of
the court, counsel for the Parties have come together in a concerted
effort to identify the issues necessary to protect victims and alleged
victims who may not have a voice in those proceedings.

I will issue a confidential Ruling and Order addressing the details of
the confidentiality requests. The portions of the Order dealing with
the issuance of publication bans take effect immediately. All exhibits
which were marked as interim “C” exhibits before the issuance of the
Order, will remain so until Friday, November 17 at 5:00 p.m., at which
time the Order will take its full effect.

To the media and anyone publishing or broadcasting information
related to the work of this Commission, I wish to say that you have a
duty to ensure that proper verifications are made so that information
to be published or broadcast is not subject to confidentiality orders.
Commission staff will be available to assist you in that regard, if
required.

Dated this 16th day of November, 2006
G. Normand Glaude
Commissioner