Response at the Weave Shed to David Silmser’s letter to Justice Normand Glaude  

(David Silmser’s  22 March 2007 letter to Justice Normand Glaude was hand-delivered to the Weave Shed 26 March 2007.  It was publicly addressed for the first time 28 March 2007. 

The following are excerpts from the Cornwall Public Inquiry transcripts of 28 March 2007.  The lawyers had apparently been discussing the Silmser letter for some time and behind closed doors and  in great depth.   

There were no expressions of sympathy or empathy from anyone for Mr. Silmser’s plight and on the whole, all lawyers who spoke to the matter indicated they concurred with the opinions expressed by Mr. Wardle. 

THE COMMISSIONER: M'hm. 

MR. WARDLE: Secondly, the letter comments on the process that has been set up, and it has some very specific negative comments about the process and some very personal comments. One could say, for example, that it seems to have become personal between Mr. Silmser and Mr. Kozloff. That's unfortunate. 

[It may not be personal to those who are being paid hundreds of dollars/hour to be at the Weave Shed, but it’s very personal to those who have been sexually abused and whose lives have been and are affected by the inquiry.]  

Secondly, there are comments in the letter, which appear to comment on the process generally, and again it's quite unorthodox for a witness, in my experience, to make these kinds of submissions by letter. 

[How then does a witness make such submissions?  And how did Mr. David Petepiece make his? And if as it seems the latter was by letter to the commissioner, where was Mr. Wardle then?] 

Next, it is silent about Mr. Silmser's present medical condition.

If you look at the first paragraph of the letter, you'll see there is a reference in the first sentence to his decision and subsequent medical approval not to appear at the Inquiry. But that's all there is. It doesn't say anything about Mr. Silmser's current medical condition. 

[Why should Mr. Silmser say anything about his current medical condition?] 

And then the letter goes on to say in various ways and in various places that Mr. Silmser could return but he has made a decision not to return, and you'll see that particularly on page 3, about three-quarters of the way down. 

There are a number of comments throughout the letter, and I just draw your attention to one on the final page.

There is a paragraph, and I'm just going to quote its one sentence: 

"And so, Mr. Commissioner, I will not return to take the stand and subject myself to further abuse from a panel of lawyers whose sole purpose is to discredit me by any means possible in a misguided effort to protect the interests of either abusers or institutions that were aware of abuse but failed to act." 

Now, in my submission, that's a very unfair comment not only about the lawyers, and this isn't about the lawyers -- the lawyers are people who are, you know, they can look after themselves -- but about the process because it's your process it's the Commission's process; and you were at some pains during Mr. Silmser's evidence to assure him from time to time that the process was fair to him and that his interests were being protected. 

[Unfair?  That’s an “unfair” comment?  As for Mr. Wardle’s comment that lawyers are more than capable of looking after themselves, I concur! And as for Mr. Wardle’s notion that all was well because Justice Glaude was “at some pains” to assure Mr. Silmser that “the process was fair to him” and “his interests were being protected” at the end of the day the assurances came to naught because David Silmser was still badgered and harangued and obviously felt badgered and harangued, a sentiment shared by many who viewed the proceedings.]  

Now, we have a larger concern with this letter, and I'll be quite blunt about it. It is unclear at this point, in my submission, whether Mr. Silmser had some assistance in writing this letter and who that assistance may have been from. 

[Why the demeaning assumption that David Silmser is incapapable of writing the letter?  What’s the basis for that other than personal opinion?] 

As everyone in this room is aware, there is an individual called Sylvia MacEachern who runs a website. Some of the language of this letter is very consistent with Ms. MacEachern's language.

Ms. MacEachern has made it clear in the past that she has an agenda to subvert the work of this Commission, and it wouldn't surprise us or my clients in the slightest that Ms. MacEachern had some input or involvement into this letter. 

[Mrs. MacEachern is and always has been interested in justice, the pursuit of truth and the protection of children from sexual predators. She has had a particular interest in allegations of a paedophile ring and cover-up in Cornwall.

How terribly sad that a group of lawyers and their clients believe that constitutes subversion. 

Furthermore Mr. Wardle, Mr. Manson and their clients might be surprised to know that Mrs.MacEachern was at the hospital 12 hours a day for the entire month of March. Her remaining 12 hours/day were spent on the phone with family, emailing family with medical updates, and making the two-hour-return trip to hospital. If they are so convinced that David Silmser had assistance because they perceive him as a mentally incompetent imbecile incapable of articulating his thoughts with such eloquence they will have to look elsewhere.   

But, I am flattered.]  

So that brings me back to the alternatives, and what we should do, and let me suggest this based on my discussions with counsel over the last 24 hours. 

There are really three alternatives; there may be more than three alternatives, but there are three main alternatives that have been discussed.

The first is that, as Mr. Silmser himself suggests, and I'm not sure whether this is serious or tongue-in-cheek, that his evidence be expunged, and in my submission that would be a great shame. It would be a great shame for a number of reasons; one, as everyone knows, Mr. Silmser is a central figure before this Inquiry in may ways because he was the pebble, which sort of started the whole -- what became an avalanche at the end of the day. So he is a central figure and his evidence, for whatever it may be worth and whatever weight you may give to it at the end of the day, his evidence and his involvement is important. 

[Yes.  David Silmser is a central figure when it comes to the allegations of a paedophile ring and cover-up.   But, when it comes to, as the inquiry mandate puts it, the institutional response to allegations of historical abuse, he’s simply another victim whose allegations of sexual abuse seemed to fall on deaf ears.

So, why the fuss about David Silmser and his testimony? 

David Silmser asks that his testimony be expunged.  That I think would mean his allegations would be also expunged and not figure in the inquiry.   

That I think means in turn that his allegations against Father Charles MacDonald and Ken Seguin would disappear. 

And that I think means there would be no need for the various institutions to defend their clients against David Silmser’s allegations. 

So what’s the problem?  Why not just expunge and get on with analyzing the response of the various public institutions to allegations of historical abuse? 

There are I believe a goodly number of other “alleged” victims with sexual abuse allegations against Father MacDonald and Ken Seguin.  There should be no problem rounding up enough evidence to sort out the institutional response to allegations of sexual abuse against the priest and probation officer. 

True, it would make life difficult when it comes time to tie the noose around Perry Dunlop’s neck and hang him high, but then this inquiry isn’t supposed to be about Perry Dunlop, ....  is it?]   

So that is not an alternative, in my submission, that the Commission should be seriously considering and, in some ways, it would, I suggest, play into Mr. Silmser's hands because he is really sort of saying, you know, "I've been here; all these bad things have happened and now the best thing to do is to sort of sweep it all away and pretend it never happened." 

[“Play into Mr. Silmser’s hands?”  “sweep it all away and pretend it never happened”” What exactly is Mr. Wardle implying? ] 

The second alternative is that you take some steps, based on this letter and based on what has taken place over the last month, to ask Mr. Silmser to re-attend to explain himself. To take the kind of steps that you might take in a criminal trial. He was brought here under summons. You have powers available to you.

In my submission, that is not an appropriate way to proceed either. Mr. Silmser has made it clear time and time again for various reasons that he is not going to participate. It would in a sense turn this into a bit of a circus to allow him a further platform to espouse his views.

 [Turn it into a circus “to allow him a further platform to espouse his views”?  Seems to me it was a circus long before David Silmser hit the stand!   But, what is Mr. Wardle’s problem with giving a victim the latitude “to espouse his views”? Is this a public inquiry or a trial?]  

In my submission, where we should end up is precisely where we were before this letter was written, that is let's get on with the process that had been planned.

Mr. Silmser's counsel, Mr. Culic, had an opportunity to participate in this event today. For reasons which I'm not clear about, he is not here. We should simply get on, get the job finished and move on to other business of the Commission and allow the counsel who have been waiting their chance to get on with their presentations, to give them. In my submission, that's the most appropriate course for us to pursue.

 [Mr. Wardle isn’t clear why Mr. Culic (Silmser’s lawyer) isn’t there?  Is this another little dig?  Seems Mr. Culic had reasons for not being there and had explained the same to Mr. Engelmann. ]  

**** 

MR. NEUBERGER (Ontario Ministry of Community and Correctional Services andAdult Community Corrections): .... and the fact that this letter is already on that website and I think it bears comment from you, Mr. Commissioner, that although you have a medical letter certainly the content of this letter does call into question the medical reason for him not returning. I think that undermines the medical letter. But more importantly it is a decision that you make as to when a witness completes their evidence or not, and I think it’s important for you to restate that. 

[Now David Silmser’s doctor is under the gun too!!! ]   

I think that given all that has happened with Mr. Silmser the most prudent approach is to continue with the alternative process which we have suggested, and at the outset if you should agree with that and we continue, then I’ll have just a brief comment about it before I begin my presentation today, and I’m prepared to go. 

If I may, just for one second, talk about Mr. Culic’s role. 

THE COMMISSIONER: Right. 

MR. NEUBERGER: I would rather move that to the forefront than to the back end of the presentations and this is why: there’s been, at least to some extent, a conscious decision by the witness not to attend. The counsel for the witness has a limited role in the process. 

[True indeed.  The counsel for the witnesses/victims have had a very limited role in the process.] 

THE COMMISSIONER: M’hm. 

MR. NEUBERGER: It would be in my opinion unfortunate if he were able to continue in the process by way of either some form of re-examination through comments or submissions or presentation and somehow continue to represent the interest of his client when the witness has chosen to not attend. 

[Heaven forbid anyone with a vested interest in defending David Silmser and/or pursuing the truth has the right to question any legal theories, half-truths or spin which might be thrown out as fact! ] 

THE COMMISSIONER: Well, okay, can I stop you there for a moment? 

MR. NEUBERGER: Sure. 

THE COMMISSIONER: This keeps coming up that he has chosen not to attend -- re-attend. He left. That’s true. 

MR. NEUBERGER: M’hm. 

THE COMMISSIONER: He left in a huff and a puff. That’s true too. However, we do have a letter from a medical person saying that he should not return and should not return in the foreseeable future. 

[Whether or not he left in a “huff and puff” is perhaps subject to debate.  But, if taken as fact, the question is why did David Silmser presumably leave “in a huff and puff”? ] 

MR. NEUBERGER: I agree and I’m prepared to debate that a bit with you simply because the letter itself I think speaks of his volition, and the medical letter itself is quite wanting. It really doesn’t indicate a proper diagnosis. It doesn’t indicate dosages. And frankly the line-up of the medication is, in my opinion, not something which would sufficiently prevent him from participating in these proceedings. It’s not a report, it’s barely a letter from a doctor.

 I’ve seen medical reports 14 years in my career. I sit on the Ontario Review Board which deals with issues with respect to medical psychiatric issues and this letter is poor in that regard. And I think we have to be concerned about the well-being of all witnesses, as, Mr. Commissioner, you are. 

[The doctor is under the gun again! ] 

And in that regard, purely on the medical letter itself we must go out of our way to accommodate the needs, the special needs of witnesses. I understand that. But when it’s cobbled together with a letter that I think challenges the process and challenges your authority in having a witness continue with their evidence, I think we have to take a harder look at that type of medical evidence, and in my respectful opinion that medical letter is quite poor. 

[And yet again the doctor is under the gun!!!   And how dare a witness/victim who is grilled and harangued to discredit him find the wherewithal within to articulate his dissatisfaction with the process!!!  Victims aren’t supposed to do that. ] 

THE COMMISSIONER: Well, okay, but --- 

MR. NEUBERGER: That’s where I differ. And when that flows into Mr. Culic, regardless, when he’s no longer a participant by way of being a witness, Mr. Culic’s role is at an end, in my respectful submission. 

[Let’s clear the deck of any potential that the ‘let’s pretend Silmser is on the stand because we need protect our client from his allegations even though Silmser would prefer his testimony and therefore his allegations are expunged’ charade is hampered.] 

THE COMMISSIONER:  Well, okay, I don’t want to debate it with you, but how about if you looked at this letter from this way.

We know that Mr. Silmser is very articulate and able to respond in certain situations, and that, I think we’ve seen it, and that if we hit on something which might not be there for us, he does respond in a very explosive fashion...And so if you look at the letter, could we not look at it and say “Well, he’s now in a good space and he’s able to write this” whether or not he had assistance or not.

But my concern is could we not read that as that’s what he’s doing? He’s in a good space. But if we put him back there and put him under the pressure, then we’d be right back where we were and that he would  sustain some harm to himself. And so I don’t know that his comments that “I’m going to be -- I could go back but I’m not going back” can be really taken -- it could be taken as bravado. 

[Between then and the next day Justice Normand Glaude apparently scrapped the idea that Dave was in a “good space” when he wrote the letter!] 

MR. NEUBERGER: M’hm.  

THE COMMISSIONER: It could be taken as a person who’s in a good space then but might not be when he comes back. 

MR. NEUBERGER: If I could just make a comment.

The letter that he wrote I don’t think is evidence of him being in a good space because I think many of the comments in his letter are unfortunate and frankly do not bear any sort of resemblance to the process. So I think he’s still, in that respect, in a bad space. 

[Why are David Silmser’s comments “unfortunate”?  Is it because they reflect poorly on the commission? Or is it because Silmser had the temerity to express them? Whatever, this it seems is suffice to discredit Silmser – he just has to be in a “bad space”!  According to this line of thought, no one but no one in a “good space” –i.e., in his right mind - would dare to speak ill of the process!!  Mr. Neuberger then proceeded to address his aversion to allowing Mr. Culic to play any further role in the process. ] 

**** 

DAVID SHERIFF-SCOTT (the Diocese of Alexandria-Cornwall and Bishop Eugene Larocque): And on the subject of his counsel, if he wants to come let him come. Let’s not undermine this process anymore, because you know what’s going to happen if you don’t, he’s going to stand up and say “Worthless process because my lawyer wasn’t allowed to be here.” Let’s keep the integrity of the process and make sure that there’s not going to be any further criticism. 

[Wise words.] 

THE COMMISSIONER: I agree to a certain point with you, Mr. Sherriff-Scott, in the sense that -- but I will not be held ransom to anybody --- 

[“I will not be held ransom to anybody”!!!  What can I say? Alas, Justice Glaude’s ruling on this sorry mess the following day sounds like that of a man who wants the world to know he has and will not be held ransom] 

**** 

JOHN CALLAGHAN (Cornwall Police Service Board) As to whether the letter should be filed, I do think that there is some merit in -- you’re either in the process or you’re not in the process. And having exited the process, I don’t think it’s free for them to then file letters, which frankly are evidentiary in nature, as exhibits in the process proper. I just don’t think that’s appropriate. 

I think you’ve also heard from Mr. Wardle, some very -- some concerns as to who is behind some of these letters. At the break, others were able to get on that website. And lo and behold, the letter on the website is an unsigned letter. Pause for consideration. 

[??] 

E-mails sent from Commission are on that website, relative to this letter. How did they get there? We don’t know. Is there -- are there people using an alternative process to conduct a parallel inquiry? That’s fine. But the problem is, is where -- when letters like this are coming, who’s controlling what process? Or who’s trying to control what process. Ultimately you’re going to control the process.

Those points have to be brought to your attention, and ultimately we’re confident that you’re going to control the process. But without the information you can’t. The only decision at the moment, it seems to me, is whether the letter changes your original view that the alternative process, for what it’s going to be worth at the end of the day, is a worthy thing to consider. 

[No need for concern.  Justice Glaude heard.  The alternative process stands.  All who need to do so will have opportunity to get their pound of flesh.  And, if they don’t like the way it works out, they’ll simply come up with a new alternative process.  Or, perhaps they’ll just decide to expunge.   

Between now and then there is ample opportunity to publicly discredit David Silmser, and in the process ample opportunity to help we the unwashed and legally illiterate public understand that there is no onus whatever on this institution, that institution or the other to protect children when/if the powers that be decide an “alleged” victim of sexual abuse is reluctant to testify, doesn’t want to testify, or is a money-grubbing thieving liar who is out looking money and therefore lacking credibility and therefore wouldn’t make a good witness. 

Why or how this response can possibly justify turning a blind eye to one single  “alleged” child molester and in the process consciously and willfully leave children in the community at risk beats me, but, from what I hear, in the legal world it does. And sadly and unbelievably it seems there is no legal shame in that justification.] 

**** 

MR. KOZLOFF (Ontario Provincial Police): ...it is rather ironic that this process began with what was presented to counsel, by counsel for Mr. Silmser, as a bonafide effort to keep him in the witness stand doing his job as a witness. We were encouraged to change an order of examination, which had been followed in each and every case from the beginning of the process, to accommodate Mr. Silmser. His appreciation for that is reflected in the contents of the letter that he has addressed, apparently, to you, whether with assistance or not, and regarding whose assistance, frankly, I don’t care. 

I’ll re-iterate that the only purpose that that letter should be used for, by this Commission, is for you to determine whether you wish to revisit your original decision about whether or not Mr. Silmser is going to be required to return. 

Mr. Sherriff-Scott’s generosity, in indicating that Mr. Culic should be welcomed back to provide whatever insights he wishes, I’m afraid I can’t bring myself to agree because, ultimately, it’s the integrity of the process which counts, and the point has been made that, for whatever reason, whether medical or otherwise, Mr. Silmser has absented himself from the process, with your approval. 

[How often do we hear about the integrity of the process? But note the little barb at Justice Glaude?  - “with your approval”! Tempers have been fraying!!!] 

You’re now being asked by his counsel, who I might add, unlike, for instance, if it was a client of Mr. Lee, Mr. Silmser’s not a party. You’re being asked by counsel for a witness who has a discreet role to play in the inquiry, for the opportunity to come and make submissions as if he were a party, or counsel to a party in the commission.

In my submission, there has to be, at the very least, it’s a matter for your discretion, and in this particular case, in my submission, your discretion should be informed by all of the factors which have led up to this point where we are entering, or about to enter, depending on your decision, into an extraordinary process to compensate for what a number of public institutions have been deprived of. 

[Deprived of.  Deprived of!!]

....If we’re going to enter into this process, Mr. Silmser having interjected himself by way of this letter, at the very least, perhaps you should revisit the issue of whether or not Mr. Silmser will ever be permitted to return as a witness. He seems -- I guess my opinions of what he’s doing in the letter are probably not of any great assistance to you, so I’ll keep my own counsel on that. 

[Seems to me there is a desire here to force David Silmser back into the Weave Shed and onto the witness stand.   Is there equal desire to force one of his “alleged” abusers, Father Charles MacDonald, to take the stand?  or lawyer and former diocesan canon lawyer Jacques Leduc who was party to hammering out the $32,000 pay-off? or Bishop Eugene Larocque, who was party to the pay-off? or Justice B. W. Lennox who saw fit to give former Crown attorney Malcolm MacDonald an absolute discharge for obstructing justice? ]  

THE COMMISSIONER: (In response to Jennifer Birrell's [Catholic District School Board] submission that “if a witness is going to be presenting themselves for Examination in-chief, it would be the expectation that they be cross-examined. That evidence would be thoroughly tested through the best way of measuring that, through cross-examination.") ---

... subsequent to Mr. Silmser's departure we dealt with matters of how to cross-examine. We have heard other witnesses who have stayed and submitted themselves to cross-examination and I think your point is well taken. 

It's a question of education in the sense that the more witnesses understand that cross-examination is not an assault on them personally, what we're doing here islooking at the institutional response.

I think we have gone a long way down that road and I will underline that as you suggested, but I think most witnesses -- no, all witnesses now are being prepared and dealt with in a slightly different way to accommodate that concern. 

[Looking at the institutional response? 

With questions like “Do you know Perry Dunlop?”  When did you see Perry Dunlop?”  What did Perry Dunlop, his wife, brother-in-law and lawyer say and do?” 

Looking at the institutional response? 

With no intent to oblige the “alleged” molesters to take the stand to test the credibility or the veracity of their denials? 

And, can you believe it?  Witnesses should understand that cross-examination is not an assault on them personally but some sort of legal/judicial endeavor to look at the institutional response to their allegations?  

In other words, victims/”alleged” victims can get psychologically and emotionally and legally and publicly shredded and humiliated –  but, ...they shouldn’t take it personally?   

What does this have to do with helping Justice Glaude looking at the institutional response?

I will say no more than quote from MacDonald v. Commissioner of the Cornwall Public Inquiry ( September 2006), the ruling wherein three Ontario justices upheld Justice Glaude’s right to call “alleged” victims of sexual abuse to testify: 

  “Assessing a particular official’s response to their [“alleged” victims] complaints may involve assessing how credible the complaints and the complainants appeared at the time. Hearing from and seeing a particular complainant may assist in this task.”  ]