Ruling on Stayed Jurisdiction Case and

Historical Abuse

At this late date does anyone at the Weave Shed know what "historical" abuse is? 

06 June 2007: Eighteen long months into the Cornwall Public Inquiry and parties are suddenly and very belatedly bickering about the definition of terms(“historical”) and the interpretation of the mandate.

The Ontario Provincial Police (OPP) led the charge. Ms. Gina Saccoccio-Brannan (OPP) objected to the calling of two witnesses, C-13 and C-12 on the grounds that their evidence is beyond the scope of the inquiry mandate.  

C-12, a female, apparently alleges she was sexually assaulted in 1993 by two boys age 16 and 17.  She reported the abuse the following day to the Alexandria police who in turn turned her over to the OPP.  What happened from there is a mystery, but the objections to the calling of C-12 and her mother imply that the "institutional response" was less than stellar.  On the other hand, unless there are familial connections which will remain secret, as with several other witnesses who have been called, there appears to be no connection between this witness and the allegations of a paedophile ring and cover-up which prompted calls for an inquiry, nor to the "institutional" response to those victims who were sexually abused by men holding positions of authority within the community who were simulatneously directly affiliated with the alleged ring and cover-up.

But therein lies the rub.  In an age where defintions are made on the fly the term "historical" as in "historical abuse" or "historical sexual abuse" has never been defined by commission counsel , and not a soul in the Weave Shed requested a defintion.  As confusing as things got during the "framing" sessions it seemed that the legal throng was singing from the same "historical" song sheet, or that at the least they thought they were singing from the same song sheet.   Not so.

Saccoccio-Brannan asked Justice Glaude to stay the calling of the witnessess.  Justice Glaude ruled that the witnesses can be called.  Ergo the OPP will take its objections to the Ontario Divisional Court for a ruling. Until then C -12 and her mother can not testify.

Below and to the left is Justice Glaude’s 06 June 2007 ruling on the matter, a ruling which means the OPP head off to Divisional Court for resolution.  To the right is part of Saccoccio-Brannan’s 05 June 2007 submission on the matter, lead commission counsel Peter Englemann’s explanation of his understanding of “historical,” and excerpts from the submissions of the Citizens for Community Renewal and the Victims group.

Ruling On Stayed Jurisdiction Case By The Commissioner 

Justice Normand Glaude

I know that the hour is late and people want to get on their way, so I’m going to deliver this as quickly as I can.

And this is a ruling on a request to stay the case. 

As you know, on many occasions I would delay the delivering of reasons in order that it be properly researched in depth and have citations and the like. However, this inquiry has to proceed and proceed quickly, so I thought it best to release the reasons now so that -- and for the reasons you see within the ruling. 

So this is a ruling on a request to stay the case. 

Background facts.

The Commission counsel gave notice to the parties that they plan to call a witness who has been granted confidentiality measures and who is identified by the inquiry of C-12 for the purposes of this application. 

The Ontario Provincial Police has, pursuant to Section 6 of the Public Inquiries Act, asked me to stay the case and to determine whether or not it is within this Inquiry’s mandate to hear this witness. 

The OPP takes the view that I do not have jurisdiction to hear this witness. 

The OPP, after having reviewed the anticipated evidence document provided by Commission counsel, has provided the following facts for my consideration. The witness will state that she was 16 years of age when she was sexually assaulted by two males aged 16 and 17. The assault took place on December 8th 1993 and was reported to police on December 9th, 1993. 

The OPP argue that this factual situation falls outside the Terms of Reference of the Order-in-Council which reads in part as follows: 

 “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.” 

Paragraph 3: 

“The Commission shall inquire into and report on processes, services or programs that would encourage community healing and reconciliation in Cornwall. Commission may provide…” 

And -- paragraph 4, sorry: 

“The Commission may provide community meetings or other opportunities apart from verbal evidentiary hearings for individuals affected by the allegations of historical abuse of young people in the Cornwall area, to express their experience of events and the impacts on their lives.” 

In short, the OPP’s position is that the term “historical abuse” of young people restricts the scope of this Inquiry into those situations where the incident complained of occurred to a child, by a person in authority, and which was only reported to an authority much later. 

In other words, the OPP is saying the mandate does not permit this Inquiry to enquire into historical or past abuse generally, but only into those situations where the complaint was made sometime after the incident, to qualify as a historical allegation. 

The Cornwall Police Service, the Ministry of Community Safety and Corrections, the Ontario Provincial Police Association and the Ministry of the Attorney General endorse that interpretation, with the Ministry of the Attorney General suggesting that, by way of compromise, I hear the evidence on the condition that the officers not be named; that the institutions not be required to respond to the evidence; and that the evidence not form part of any notice of misconduct. 

The Cornwall Police Service further added that to open the mandate to historical abuse would mean that every case prior to the Order-in-Council, which he indicated would number over 1,000 for the Cornwall Police Service alone, would be subject to scrutiny. 

In the view of the Cornwall Police Service, it would be unfair to judge this wider group of cases on the example of one single case. 

Opposing this interpretation are the Citizens for Community Renewal, the Victims Group and Commission Counsel. 

The CCR take the view that it if it was the intention of the provincial parliament to restrict the focus of this Inquiry to historical abuse, the word “historical” would also have been included in section 2(b). 

As well, the preamble speaks of allegations of abuse and section 3 speaks of community healing and reconciliation in wide terms. 

The CCR goes on to argue that the evidentiary value of this witness, his evidence, is such that it would allow the Inquiry to test and measure the education and progress outlined in the OPP corporate presentation.

The Victims Group endorse the CCR's position. 

Commission counsel indicated that the Commission had been treating the word "historical" to mean abuse that occurred prior to the Order-in-Council and that it had never tied “historical” to a reporting component. Commission counsel went on to point out that all of the context experts, including Dr. Wolfe, Dr. Jaffe, Professor Bala and Officer Leaver, gave evidence about responses to abuse complaints whether reported concurrently or later and also about child abuse generally, including its effects on both children and adult survivors. 

Wendy Harvey, a Crown Prosecutor from British Columbia, also gave expert context evidence on the evolution of the prosecution of cases in which reporting had been current and in which reporting had been dated. 

As well, Commission counsel pointed out that the corporate presentations of all of the institutions covered policies, procedures and advancements on a broad range of issues dealing with their responses to sexual abuse generally, and were not limited to their responses to historical abuse as defined by the OPP. 

Commission counsel also indicated that several victims and alleged victims have testified who reported to institutions concurrently or shortly after alleged abuse occurred. 

Finally, I should note that parties did make submissions with respect to relevance of the evidence in question. In my view, the question before me is one of jurisdiction only, as relevance would go to issues such as admissibility generally and the weight to be given to such evidence, which is not the subject matter of the section application.  

Now my Decision. I am of the view that both interpretations of “historical” have merit and that they are not mutually exclusive but are quite compatible. I take this view after having considered the terms of the Order-in- Council, the evidence heard to date, and of course the principles to be applied in conducting inquiries of this type. 

Before continuing on to discuss this further, I wish to first make a brief comment about the suggestions made by the Ministry of the Attorney General as to how the evidence of this witness in question might be heard. While I certainly appreciate innovative solutions aimed at resolving issues such as these, the suggestions presented simply cannot apply in this case. To fetter my discretion without having heard the evidence would be to circumvent the very purpose of this Inquiry. It is clear that while the Commissioner is to afford a broad and liberal interpretation of the mandate, it is equally clear that such an interpretation is not a licence to go into areas clearly not contemplated by Parliament.

Parliament is deemed to know the law and has drafted the mandate of this Inquiry while knowing that a commission can and will interpret it in a broad and liberal fashion. It could have chosen to restrict the mandate. Instead, it chose to use general terms in the Preamble and other sections. In reviewing the mandate, it is clear that the main focus of Parliament was to highlight the cases that had been in the spotlight in the community at the time of the decision to convene this Inquiry, hence the reference to allegations of historical abuse. 

The Terms of Reference do not make any reference, however, to allegations of abuse at the hands of persons in authority, nor does it define the age of the victims but refers to “young people”. As well, the Preamble clearly contemplates a general inclusive statement, not limited to historical allegations, but referring to allegations of abuse of young people that have surrounded the City of Cornwall. 

I am of the view that while Parliament certainly indicated that historical allegations of abuse would be a central part of the Inquiry, the mandate certainly does not read to limit it to those specific areas. To interpret the mandate in such a way is unduly restrictive and contrary to the spirit of the Preamble and to section 3 of the Order-in-Council. 

Also of significance is section 2(b) of the Order-in-Council, which contains no reference to historical abuse. This provision requires the Commission to inquire into and report on the institutional response in relation to the creation and the development of policies and practices that were designed to improve the responses to allegations of abuse. Restricting this important part of the Inquiry's work to complaints reported by adults is, in my view, not contemplated by this language. It would certainly not be a broad and liberal interpretation and could limit the usefulness of the Inquiry's work and recommendations. 

We are nearing the end of the victims' evidence, and it is not the intention of this Inquiry now to open the floodgates or to widen the mandate that I have set out to date. 

Aside from expert evidence addressing both current and dated reporting, we have also heard evidence from victims and alleged victims who do not fit the OPP definition of this mandate. By way of example, Larry Seguin, Jason Tyo, Scott Burgess, Jodie Burgess, and André Bissonnette, all reported their allegations while still young people.

While in some of those cases there were also later additional reports, the first report was also examined by this Inquiry. This Inquiry has not drawn an arbitrary line based upon time of report. We have heard from witnesses who reported their alleged abuse at the time it was said to have occurred. Others have told us that they reported their allegations sometime later, whether that be days, weeks or months later, and of course others told us that they only reported as adults. 

Given the foregoing, I dismiss the request of the OPP to stay the case to the Divisional Court.

 As I will be indicating in my report to the community before the upcoming summer break, it is time to close that portion of the Inquiry that has been hearing the evidence of victims and alleged victims. As such, I would ask that if the OPP intends to pursue this matter, as is their right, it do so expeditiously, so as to give some closure to C-12, who is now in the difficult position of not knowing when or if she will be able to testify and to permit this Inquiry to continue on in an orderly fashion. 

I should reiterate that should this matter be pursued further, those participating must be ever mindful of the confidentiality measures in place for this witness. Neither her name nor any information that would tend to identify her may be used in those proceedings. I have not commented on the proposed testimony of C-13, who is the mother of C-12, but presume that Commission counsel will not leave this evidence in isolation and thus her ability to testify will follow that of C-12.  

This is dated the sixth day of June two thousand and seven. 

Gina Saccoccio-Brannan (OPP) 

This is in respect of ...the proposed witness that’s next, and the anticipated evidence that was received on Friday at 5:00 p.m. indicated to us that it is -- and it is our submission that this evidence falls outside the Terms of Reference. 

The allegations that will be spoken to by this particular witness is in respect of a sexual assault when she was 16 years of age.  The sexual assault, as I understand it from the AE, occurred on December the 8th of 1993. The alleged perpetrators were 16 and 17 years of age and it was reported on December the 9th of 1993 to the Alexandria Police Service, who then realized, once the investigation ensued, that the matter was within the jurisdiction of the Ontario Provincial Police, and then the matter was handed over to the OPP. 

And I think that’s all that’s necessary to be known in order to understand the submissions that I’ll make regarding whether this falls inside or outside the Terms of Reference.

It’s our submission that it falls outside. And in that regard, I turn to the Order-in-Council setting out your Terms of Reference at paragraph 2, where it says:  

“The Commission shall enquire into and report on the institutional response of the justice system and other public institutions...” 

And I’ll move down to: 

 “...in relation to...”   

And here are the operative words:  

“...allegations of historical abuse of young people in the Cornwall area...”  

And the rest is not necessary. It’s the words “historical abuse” that are the operative words.

It’s the position of the Ontario Provincial Police that an allegation of sexual assault, having occurred on December the 8th of 1993 and reported on December the 9th of 1993, is not historical abuse.

This Commission of Inquiry’s Terms of Reference deal with allegations of historical abuse, not historical allegations of abuse. 

Now, it may be, Mr. Commissioner, that you agree with us that the timing of the assault and the reporting of the assault do not fall within your Terms of Reference.

However, if you do not agree with us, I then turn to section 6 of the Public Inquiries Act. And there are five steps that we’re required to follow in dealing with the stated case and, in particular, section 6(1) states: 

“Where the authority to appoint a Commission under this Act...  

And we certainly aren’t in that area.  

“...or the authority of the Commission to do any act or thing proposed to be done or done by the Commission in the course of its inquiry is called into question by a person affected.” 

So at this point we have the calling of the evidence of this individual; the Ontario Provincial Police, a party with standing, calling it into question.

It then says:  

“The Commission may have its own motion or upon request of such a person state a case.” 

So at this point, if you do not agree with us, you may state a case to the Divisional Court and at this point we make that request that you do so. 

In the event that you decide to refuse to state a case, the person requesting may apply to the Divisional Court for an order directing the Commission to state such a case. And then where the case is stated, the Divisional Court hears it and determines it in a summary manner and while that is going on, that particular subject matter of the stated case is stayed.

In this particular case, unlike Starr, it does not shut down this inquiry. It only addresses the evidence of that witness and that witness’ mother. There are two witnesses involved. 

And that, simply  put, is where we’re at. I don’t intend to argue the merits. There’s no need to do that because of the timing of the assault and then the timing of the reporting of the assault. I don’t believe it fits within the -- I would submit that it doesn’t fit within the Terms of Reference, particularly the words “historical abuse.”

. . . .

Each one of the contextual experts talked about historical child abuse or historical abuse as being abuse that occurred when the child -- when the person was a child and coming forward later on when they are an adult.

And they talked about abuse, and abuse in the sense of a child being abused by a person in a position of trust. That is not what we have here in respect of the evidence of the next witness. This is a 16-year old woman who’s sexually assaulted by 16 and 17 year-old boys, allegedly, and then reports it the next day.

Peter Engelmann

(lead commission counsel) 

We have been treating the word "historical" and, as I said, it's used in one case together with the word "abuse".

The word "abuse" finds itself at other places as well, but we have been treating it to mean abuse that occurred prior to the Order-in-Council. We have never tied the word "historical" or restricted it to when the abuse was reported. We have done so for a number of reasons. First of all, we believe in a broadened level of interpretation of the mandate. We have never seen the word "historical" tied to reporting.

And, I guess, just thinking about it since Saturday morning when I read about this, what could it possibly mean if we were talking about reporting only? Would it mean that we were only to examine cases where adults have come forward to talk about the sexual abuse they suffered as children?

Of course, that's not what we've been doing for the last year-and-a-half. Right from the start of this Inquiry, we have been looking at when abuse occurred and we’ve been looking at an evolution of how institutions have responded to that abuse, whether the abuse was abuse that was reported by children or whether it was abuse reported by adults about when they were children. 

And we’ve heard a lot of evidence over the last year-and-a-half that, according to some of the submissions I’ve just heard, has been outside of our mandate. For example, all of our context experts talked about how -- whether it be abuse reported by children or abuse reported by adults when they were children, when we go back to Drs. Wolfe and Jaffe, they talked about the effect on both children and adult survivors

........let’s say the Divisional Court disagrees with the approach that Commission counsel have taken throughout, that this is not Project Truth II; this is broader than that. We have a broad and liberal interpretation to a mandate and historical abuse is abuse that has occurred before the mandate.

And, of course, your task was making all sorts of recommendations about how institutions should respond to child sexual abuse. So are you now just going to report on how they respond to historical child sexual abuse; that is, sexual abuse where adults have come forward to report?  

Helen A. Daley

(Citizens for Community Renewal)

 ... in my respectful view, the proposed evidence of this witness and her mother are within the terms, and then secondly, I want to make some submissions to you concerning the evidentiary value of this proposed evidence in relation to evidence that we’ve heard already. 

......So on the Terms of Reference themselves, my friend, Ms. Brannan, is quite right to point out the language “historical abuse” within 2(a), but I would just ask you please to note that there are certainly other provisions that are not so limited. 

Section -- one moment -- section 2(b), for example, refers to allegations of abuse. So there’s no limiting words. The adjective “historical” is not found there. 

Similarly, section 3 of the mandate makes it clear that this Commission is to enquire into and report on processes, services, et cetera, that would encourage community healing and reconciliation in Cornwall.  Again, that’s not an aspect of the mandate that is limited or qualified to historic abuse. 

So my primary submission as to the interpretation of the mandate, sir, is that if the intent was to completely restrict the focus of this Inquiry to historic abuse, then the limiting language would also have been found within 2(b) and section (c), and it’s not.

So on the face of the document, Your Honour, my submissions would be that there is no intended limit. 

But let me just comment briefly on the second point, which is the evidentiary value, the prospective evidentiary value of this evidence, and in that respect I would suggest this. 

As you, of course, know, we have heard ample evidence from the OPP that they treat historic sexual abuse allegations in the same manner as they treat and investigate what I might call current allegations; that is to say an allegation where there is no time gap between the occurrence and the reporting.

And I gather that it has been stated here, very firmly, that the training, the approach to the investigation is the same regardless whether the assertion is an historic one or a current one. 

We have -- I would suggest that that would then render it relevant for this Commission to look into how, indeed, they did treat the allegation in the year 1993 when it was brought forward as a current allegation. Itwill allow the Commissioner to test that assertion. 

I think another aspect of the evidence that’s been heard so far is that between the years 1985 and 1990, there was a learning curve in place in terms of how police forces investigate and dealt with sexual assault and abuse allegations. The proposed evidence deals with occurrences and the reporting of occurrences in 1993.

Again, receiving that evidence, Mr. Commissioner, would allow the Commission to test or to measure how, indeed, the forces responded to an assault allegation after their learning curve was over. In other words, again, it provides a means to allow you to assess and to evaluate the evidence that you’ve heard. 

I would conclude with one final point. The witness that we’ve just finished with this morning is a person who unfortunately, for whatever reason, was not able to bring forward allegations at the time they were in fact current. We now have the proposed testimony of a person who was able to do that. She did come forward when it was current and I gather she came forward with her mother’s support. I think it would instructive for the Commission to hear about how that person was dealt with, because we’ve heard a great deal about what happens when people can’t come forward. When they do come forward at a time that’s current to the events, I think it would be of interest to the Commission to know how the investigation ensued and how it was dealt with. 

Dallas Lee

(Victims Group)

So the issue really is about the meaning, as Ms. Brannan states, the issue of the meaning of historical abuse. 

As Ms. Daley said, she’s pointed you to other sections. I would also point out that the preamble to the Order-in-Council speaks of whereas allegations of abuse of young people, the word historic or historical is not included there either. 

The only other point that I wanted to make, sir, is that it seemed to be a given from the start of this Inquiry that anything that occurs in terms of institutional responses or allegations of abuse after the date the Order in-Council came down, is outside the scope of this Inquiry. 

In that sense, we’re looking at things that were historic, vis-à-vis the mandate, vis-à-vis the calling of the Inquiry.