SQLFusion - David Sheriff-Scott, lawyer for the diocese of Alexandria-Cornwall, explains to Justice Normand Glaude why the diocese will not appeal the ruling that the diocese isa public institution

The diocese is now a public institution

David Sheriff-Scott, lawyer for the diocese of Alexandria-Cornwall at the Cornwall public inquiry, explains to the commsioner, Justice Normand Glaude, why the diocese will not appeal his ruling that the diocese is a public institution.

Mr. Sheriff-Scott: You’ll know, Commissioner, when the long awaited Terms of Reference for the inquiry were issued, my client and I studied them with great care and it was apparent to us that the historical expression of concern in Cornwall had centred around what we consider to be the sufficiency of police investigations into historical allegations of abuse and how other agencies handled that.

Based on the historical context and what we considered to be the clear language of the Terms of Reference, we concluded that the Diocese was a community sector organization within the meaning of that document.

The fact that we felt the Diocese had that status we concluded was consistent with the documents since it would have allowed you to measure how my client interacted with authorities and determined whether or not the Diocese conformed with its legal and reporting obligations in connection with its interface with those organizations. It’s with that perspective that we approached the standing hearings, believing we had a role to play in the inquiry to assist you as well as to ensure the Diocese’ rights were respected. We applied for standing on that footing.

Following the standing hearings, the Diocese began to participate and did so on that basis. Commission counsel was aware of our perspective and there followed, as the process began to roll, meetings between parties, including the Diocese and Commission lawyers and work with respect to production, and at all times the Diocese, with the knowledge of your counsel, was operating under an assumption that it was a community sector organization and, indeed, fully comprehending the Diocese’ position.

Commission counsel did not criticize us for that view and it would be an understatement to say we could be forgiven for concluding that there was concurrence on our position.

However, in February others expressed the view that the Diocese was to be treated as a public institution within the meaning of the reference terms and when that position was revealed to me, I wrote to your counsel saying that we had participated up to this point in February on the assumption that we were otherwise captured by the Terms of Reference and that we would continue to hold that assumption unless you concluded otherwise.

And so by way of history, those different perspectives, from our point of view, are the things that stimulated or triggered the hearing on the Terms of Reference. The Diocese did not bring a motion.

THE COMMISSIONER: M’hm.

MR. SHERRIFF-SCOTT: The Commission itself stimulated it in the face of conflicting views and circumstances where, I believe, you yourself concluded that the issue was not free of doubt.

From our point of view, regrettably, during the scheduling of the hearing, there were some -- even some with standing who made statements and criticisms which we did not accept and believed were unfair. There seemed to have been invoked a double standard insofar as the Diocese was concerned, that people should draw negative inferences about it relying on its legal rights. Those criticisms, in our view, were not only wrong but not well founded and you have admonished some people for taking that kind of position, for which we thank you.

Now, you have now concluded that as a result of your ruling that the Diocese should be treated as a public institution as opposed to a community sector organization. The Diocese, however, continues to be of the opposite view for a number of reasons which, in no particular order, are that we consider the decision to raise broader issues which may affect many organizations.

In our view, it blurs the distinction between church and state and the well-established views of what we consider to be appellate courts on the private nature of religious institutions. Indeed, other organizations of a non-Catholic basis have contacted us expressing those concerns.

Second, in a similar vein, the decision, from our point of view, raises the spectre that religious freedoms guaranteed by the Diocese may be in peril.

Third, the decision, we consider, departs from the traditional method of analyzing statutes and we were also concerned; fourth, that it resulted in the Commission expanding its jurisdiction when the Lieutenant Governor in Council had not authorized us to be treated as a public institution, and we have other concerns.

However, notwithstanding the view expressed by me at this moment, a decision to seek a review of your reasons would require what we consider to be profoundly important public interest questions to be assessed in order to determine whether the confidence of the Diocese in the correctness of its own views might be outweighed by other considerations as the work of the Commission goes forward.

For example, can the Diocese withstand what we consider to be the continued misinformed posturing that its principled views on its status are nothing more than an attempt to impede the work of the inquiry?

We know that the process of a judicial review, for example, would clearly generate such additional misinformed criticism by invoking the kind of double standard to which I have alluded and, thus, obstructing what we consider to be the reconciliation objective of the Commission.

Moreover, should the Diocese accept responsibility for delays which would accompany a judicial review and which, in our view, would be clearly contrary to the public interest and seeing these ongoing controversies in the Diocese being laid to rest, these important considerations have to be weighed in the balance and were weighed by us carefully in our decision with respect to the question of an appeal.

Having weighed all of these issues that I’ve raised, we have found, in our view, that the public interest considerations outweigh all other matters and, accordingly, in order to prevent any delay in the Commission’s work and to silence the efforts of those who may seek to invoke the kind of double standard which troubles us, we will not at this time appeal your decision and we will participate in the inquiry as if Diocese were a public institution within the meaning of the Terms of Reference.

Now, I say that, but I say the Diocese remains concerned. I pause to emphasize that while we wish very much to assist the Commission in fulfillment of its mandate, we must be mindful of the rights of our members and employees like any other organization must be mindful of the rights of its people. Public inquiries are capable of doing great good. They are also capable of causing great havoc with the individuals’ reputations and people before a public inquiry, every person, including all members of the Diocese, deserve their rights and process considerations to be protected in order to ensure fair treatment and justice.

So that is the perspective with which we will go forward. We will not launch an appeal and, having informed you of our position on this point, it behoves me not to briefly update you on the production issue.

THE COMMISSIONER: M’hm.

MR. SHERRIFF-SCOTT: The basis of our participation, in our view, has now changed. We wrote to your counsel on Thursday last. We have begun the process of evaluating my client’s records from the point of a public institution.

There was an internal investigation of the Deslaurier case which occurred in the mid-1980s which generated significant documentation. Three lawsuits occurred in the mid-1990s, one in the late 1990s, and there are presently a number of lawsuits to which I alluded in the standing submissions and which your counsel and you may be aware.

Whereas the documents in all of those proceedings would not have historically been germane to the question of our participation as a community sector organization, they are now clearly relevant in terms of participating as a public institution and there are also a large number of privileged documents that were generated in all of those many proceedings.

So we reported to your counsel on Thursday last that we have already begun seeking third-party consents. We have written to all of the defendants in all of the historical proceedings in connection with their records. We have written to all other people who may have had an interest or provided information to the Diocese on a confidential basis in the past; for example, as your counsel will see and as I have discussed with him, the Deslaurier investigation included participation of people on a confidential basis to whom we have written. We have sought the permission of all these people and we expect that will be forthcoming.

And therefore, I expect our production will be fully complete and certified within four weeks’ time. I have delayed the opening statement because the document has to be substantially revisited based on our changed status and your decision, but I expect I will have that within three weeks time. A week later, the production will be complete.

In the intervening period, I want to assure you that we will work closely with your lawyers and ensure that any issues with respect to production will be resolved, hopefully by meeting directly where necessary.

That’s the sum of my update this morning, and I want to thank you for the opportunity to address you.

THE COMMISSIONER: Thank you. You are welcome.

All right. So we will continue with the hearing at this point.