RULING ON THE JURISDICTIONAL MOTION

(01 May 2006) 

This matter arises by way of motion filed by counsel for Father Charles MacDonald and the Estate of Kenneth Seguin. 

In their written motion materials, the Applicants requested an order that the Commission has no constitutional or other jurisdiction to inquire into specific allegations of sexual abuse or other wrongdoing made by alleged victims against the Applicants. 

In their written motion materials, the Applicants also asked that a question by way of a stated case be referred to the Divisional Court regarding the jurisdictional and constitutional authority of the Commission to hear evidence regarding past wrongdoings and allegations from past alleged victims.

The Citizens for Community Renewal, the Victim’s Group, the Ontario Provincial Police, the Ontario Provincial Police Association and the Cornwall Community Police Service filed written submissions. On March 29, 2006, I also heard oral arguments from these parties. Counsel for Jacques Leduc and the Men’s Project also gave brief oral submissions.

The Cornwall Public Inquiry was established by Order in Council dated April 14, 2005. The Order in Council directs the Commission to 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 allegations of historical abuse of young people in the Cornwall area, in order to make recommendations directed to the further improvement of the response in similar circumstances. 

To fulfill the Commission’s mandate, the Parties were advised of Commission counsel’s intention to call alleged victims of child sexual abuse to testify before the Commission. As stated by Commission counsel at the hearing, the nature of the evidence sought from the victims would be the following: when they complained, to whom they complained, about whom they complained and some brief details about the nature of the complaint and the resulting action or response of the public institutions and their employees and/or officials. 

The Parties were also advised that, in all likelihood, the statements that they gave to the police and/or other authorities containing their allegations would be tendered as evidence. The Parties were told that those statements would not be tendered for the truth of their contents. 

Commission counsel indicated that the purpose of calling evidence from alleged victims is to examine the response of the justice system and other public institutions. 

Commission counsel and I have clearly and repeatedly said that it was not the intention of the Commission to try or re-try the criminal or civil matters arising out of the facts that are part of my mandate. In fact, this is expressly prohibited by section 7 of the Order in Council, which provides that  

“7. The Commission shall perform its duties without expressing any conclusion or recommendation regarding the civil or criminal liability of any person or organization. The Commission, in the conduct of its inquiry,shall ensure that it does not interfere with any ongoing legal proceedings relating to these matters.” 

In my opening remarks made on February 13, 2006, I stressed that: 

“There have been criminal proceedings in the courts and there are ongoing civil proceedings. This inquiry does not and cannot seek, in effect, to try or re-try these matters. It is not within my mandate to determine who did what to whom, although I may make findings of fact about what allegations were made to various public institutions and how those institutions responded, including the interaction of the esponse with other public and community sectors.” 

This being said, I am asked to find that the Commission has no constitutional or other jurisdiction to inquire into specific allegations of sexual abuse or other wrongdoing made by alleged victims against the Applicants.  

I first note that counsel for the Applicants did not challenge the validity of the Order in Council, but stated that the Commission would exceed its jurisdiction and delve into the area of criminal law by calling evidence from alleged victims. The core of the Applicants’ position is based on the assertion that by calling evidence from alleged victims, the Commission would be in fact trying or re-trying those matters and leave the Applicants factually guilty, with no recourse to clear their names. 

I do not agree with those arguments. The Commission is entitled to call alleged victims of sexual abuse for the purposes set out by Commission counsel. As pointed out in Starr v. Houlden, [1990] 1 S.C.R. 1366, the Supreme Court and other courts have consistently upheld the validity of provincial commissions of inquiry which may incidentally have an impact upon the federal criminal law and criminal procedure powers, as long as the pith and substance of the commission is firmly anchored to a provincial head of power, and that a commission does not, purposely or through its effect, investigate and determine the criminal responsibility of specific individuals for specific offences. 

Those principles were repeated by the Supreme Court in Consortium Developments (Clearwater) Ltd. v. Sarnia, [1998] 3 S.C.R. 3, and recently by the Ontario Divisional Court in Jakobek v. Toronto (Computer Leasing Inquiry), [2004] O.J. No. 2889.

Calling of alleged victims is essential in order for the Commission to investigate the institutional response of the justice system and other public institutions in relation to allegations of historical abuse of young people. The core of the Commission’s mandate is firmly anchored to provincial heads of power and is directed at the institutional response of public institutions, including Ontario government institutions. 

As part of its mandate, the Commission will have to review criminal allegations, investigations and criminal proceedings. However, this will be done for the sole purpose of fulfilling the provincial purposes of the Inquiry. As pointed out by Mr.Justice Lamer as Commissioner of the Lamer Inquiry in Newfoundland in a ruling on the Terms of Reference, a “commission may review the same subject matter as that of a criminal investigation and trial, but it must do so for a different and legitimate provincial purpose”, which is the case here. 

However, as indicated, while the Commission will look at criminal allegations, investigations and proceedings, it is not allowed and does not intend to try or retry the cases and make findings expressing an opinion as to criminal or civil responsibility in law.

The Applicants relied on Re Nelles et al. and Grange et al., (1984) 86 O.R. (2d) 210 (Ontario Court of Appeal) for the proposition that by calling alleged victims to testify on criminal accusations, the Commission would seriously prejudice the Applicants and leave them factually guilty, without recourses, which would not be permitted. 

Nelles concerned an Ontario provincial inquiry into death of children in a public hospital. Nurse Susan Nelles was charged with first degree murder of four of the children but was discharged. The inquiry was created to look at the circumstances surrounding the death of children and the subsequent criminal proceedings against Mrs. Nelles. The question was whether the commissioner could express an opinion as to whether deaths were the result of actions of any named person. The Ontario Court of Appeal answered the question in the negative and found that the commissioner was authorized to report on circumstances of deaths, but could not identify any individual who might be responsible for such death, as this would be tantamount to a finding of civil or criminal liability. 

This is not what we are dealing with here. As stated by the Supreme Court in Krever (Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System in Canada - Krever Commission), [1997] 3 S.C.R. 440), the Nelles case was unique as it was dealing with specific incidents and specific individuals during the course of specific investigations. The Court pointed out that the test set out in Nelles would be appropriate when dealing with commissions investigating a particular crime, but not to inquiries engaged in wider investigations, such as this one. 

In addition, it is now clear since Krever that a commission of inquiry is entitled to draw, from the findings of fact, appropriate conclusions as to whether there has been misconduct and who appears responsible for it. 

In that regard, the Applicants’ concern with regard to findings of “misconduct” against them is misplaced. The Commission is allowed to make findings of misconduct and name individuals, but such findings, considering the mandate of the Commission, would be directed at actors of public institutions or at the institutions themselves.

I thus have no doubt that, with the caveats set out above, the Commission, as part of its mandate, may allow alleged victims of child sexual abuse to testify before the Commission for the purpose of gauging the action or response of public institutions to complaints made.

However, I must say that the concerns expressed by the Applicants are understandable. Any allegations, particularly potentially false allegations made against the Applicants, could have serious impacts on their reputations. However, this does not preclude the Commission from hearing the evidence for the purpose set out above.

I believe that the true concerns of the Applicants lie not with the jurisdiction of the Commission to call such evidence, but with the protection of their reputation and of their privacy. 

In Krever, the Supreme Court stated that the conclusions, and I would also say, the hearings of a commission of inquiry, may have an adverse effect on a party or witness to the inquiry. For that reason, procedural fairness is essential as the findings of commissions of inquiry may damage the reputation of witnesses. Father Charles MacDonald is a party before this Commission with full standing, limited to those issues which directly affect his interests. For Phase I of this Inquiry, the interests of Mr. Kenneth Seguin are represented by the Ontario

Ministry of Community Safety & Correctional Services and Adult Community Corrections, who also is a Party with full standing. 

Parties with full standing have the right to make opening submissions, to relevant documents, advance notice of documents which are proposed to be introduced as evidence, advance provision of statements of anticipated evidence, to have a seat a counsel table, an opportunity to suggest witnesses, an opportunity to cross-examine witnesses and an opportunity to make closing submissions. They thus have at their disposal a significant array of tools that may be used in order to protect their right to a fair hearing. 

With respect to privacy, the Applicants may seek the benefit of provisions of the Public Inquiries Act, the Order in Council and the Rules to seek confidentiality measures so that the disclosure of evidence and other materials balances the public interest, the principle of open hearings, and privacy interests. 

I am conscious that reputation and privacy are important values to all Parties and witnesses. I am required to balance those rights against the public interest and the principle of open hearings. Parties and witnesses can rest assured that I will treat them at all times with dignity and respect. 

The concerns brought by the Applicants are serious ones, but as indicated, do not affect the jurisdiction of the Commission to call alleged victims for the purposes set out by Commission counsel. The Applicants are entitled to a fair process, and can avail themselves of the rights afforded to Parties with standing.

Any specific concern of the Applicants will be dealt with on a case-by-case basis, applying the provisions of the Public Inquiries Act, the Order in Council and the Rules.

In the written motion materials, the Applicants also asked that a question by way of a stated case be referred to the Divisional Court regarding the jurisdictional and constitutional authority of the Commission to hear evidence from alleged victims. This issue was not further discussed in oral arguments. I do not believe that this is a matter for a stated case. The law is clear and the intentions of Commission counsel with respect to the calling of alleged victims have been carefully set out and crafted to stay within the boundaries of the law. 

This ruling applies only to Phase I. Phase II is governed by a different set of Rules. Both Father MacDonald and The Estate of Mr. Seguin & Doug Seguin have standing for Phase II. Should they have concerns with respect to Phase II, they may address them in that particular context. 

I would thus dismiss the motion.

I wish to thank counsel for all the Parties who have made submissions on this issue for their thoughtful assistance.