Is the gag an absolute necessity?

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Over the weekend I posted the Supreme Court of Canada decision Goodis v Ontario (Ministry of Correctional Services) wherein the highest court in the land quashed first a ruling by David Goodis (an Ontario Information and Privacy Commissioner) and then two successive Ontario court rulings related to disclosure of Cornwall-related documents, specifically documents regarding probation officers and/or other employees which that ministry has been fighting tooth and nail to keep under wraps.

The wrangling has been going on for years.  I think the best way to encapsulate it all comes from the Supreme Court itself which, in an 04 July 2006 announcement heralding the 07 July ’06 release of its decision, summated the case of Ministry of Correctional Services v. David Goodis, Senior Adjudicator, et al. (Ont.) (30820) as follows:

A journalist made an access to information request for records relating to allegations of sexual abuse by probation officers employed by the Ministry.  The Ministry found 459 pages responsive to the request but refused to disclose them.  On an appeal to the Information and Privacy Commissioner, the refusal to disclose 440 pages was upheld primarily on the ground of solicitor client privilege, and 19 pages were ordered disclosed.  On an application for judicial review relating to the 19 pages, the court ordered disclosure of all 459 pages to opposing counsel, subject to providing a confidentiality undertaking and an undertaking not to act on behalf of the requester on the matter in future.  Disclosure was for the purpose of arguing the issue of privilege and to ensure procedural fairness to all parties. The Ministry brought a motion to set aside that Order, arguing that opposing counsel had sufficient descriptions of the records with which to argue the issue of privilege, and that disclosure would be in breach of solicitor-client privilege, confidentiality and privacy rights.  The motion was dismissed by the Divisional Court and the Court of Appeal for Ontario dismissed an appeal of that decision.

Three days later the Supreme Court released its decision: Goodis vs. Ontario (Ministry of Correctional Services).

The high court backs the Ministry of Correctional Services.   In his precedent-setting ruling Supreme Court Justice Marshall Ronstein rules that the Ontario courts “were in error” in permitting disclosure and that  information which is subject to  solicitor-client privilege is to be disclosed only when it is an absolute necessity, which, according to Rothstein, is “a test just short of absolute prohibition”

Rothstein has recommended that the issue return to Divisional Court to pursue disclosure of any documents not subject to a claim of solicitor-client privilege.

I would guess that those documents which pass the ‘absolultion’ test will be few and far between and Jane Doe will leave the process virtually, if not, empty-handed!  And I would venture to guess that any records explicitly showing prior knowledge of any probation officer’s sexual proclivities with young boys are safely tucked well under the solicitor-client privilege mantle.

I would also guess that the Ministry and every other “public” institution will howl the “absolute necessity” and “solicitor-client” mantra long and loud at every given opportunity for the duration of the inquiry.

Strange as it may seem I find this akin to the Charter favouritism heaped upon our real and alleged child molesters.  As we know all too well, when it comes to Charter rights those of Cornwall’s real and alleged paedophiles consistently trump those of children, the community and their real and alleged victims.

We seem to be moving in much the same direction with this solicitor-client business.  A solicitor-client claim will now effectively  trump all else including, without doubt, the public’s right to know. 

Rest assured too that if not already so, every insitutution will become adept at ensuring that solicitor-client privilege covers those matters which they would prefer never see the light of day. (remember the Durocher testimony and documents entered into evidence at the time showing that the Canadian bishops were getting advice from Jeff King and Frank Morrissey on exactly this sort of thing back in the 80s?)  

Much as I hate to harp I really must say that with a decent mandate the howlers wouldn’t have much of a leg to stand on.  For example, if the mandate specified – as it should – that the inquiry would, amongst other things, inquire into allegations of cover-up against, for example, the office of the Attorney General, the diocese, the Church, Children’s Aid Society, the judiciary, schools, the Ontario Provincial Police, the Cornwall Police Service and/or various individuals within those institutions, I do believe howling “absolute necessity” for so-called privileged solicitor-client information wouldn’t have a hope. What could be more absolutely essential in the pursuit of truth and justice than obliging various institutions to disclose all of their documents to prove once and for all that they and/or various pillars of the community within them were NOT party to a cover-up!

But, that’s not the way it is.   

And, in light of the precedent-setting Supreme Court ruling coupled with the toothless mandate I would guess the Cornwall Police Service will come away from Divisional Court 21 September 2006 with a decision pleasing to its own interests.

So, I suppose we’ll just have to wait and see what impact this has on the Cornwall Public Inquiry and wonder what will happen when Jane Doe and Goddis head back down to Divisional Court to resume battle with Correctional Services.

Meanwhile what we do know is that in the Spring of 2004, despite the fortune of tax payers’ dollars it has squandered to keep its files secreted, the Ministry of Correctional Services (Honourable Monte Kwinter) settled out of court with 13 Cornwall sexual abuse victims. 

We also know that initially there were 19 victims but six victims who weren’t happy with the offers moved on to another law firm.  

And we know that the 13 victims who settled were required to sign a Confidentiality Agreement – in other words, they are gagged!

With the exception of Victim G where as noted I am unsure if the settlement is $80 or 50,000, here are the out-of-court settlements paid the current Liberal government to 16 Cornwall sex abuse victims.

(1) Victim A $125,000.00

(2) Victim B $112,500.00
  (plus $7,500 treatment fund)

(3) Victim C $    3,000.00

(4) Victim D $  15,000.00

(5) Victim E $  70,000.00
  (plus $5,000 treatment fund)

(6) Victim F $ 75,000.00

(7) Victim G $  80,000.00 or $50,000.00
  (plus $5,000 treatment fund)

(8) Victim H $  45,000.00
  (plus $5,000 treatment fund)

(9) Victim I $  40,000.00

(10) Victim J $  30,000.00

(11) Victim K $  20,000.00

(12) Victim L $  70,000.00

(13) Victim M $  50,000.00

My question is, why the gag?

And is it , like solicitor-client privilege, an absolute necessity?

Enough for now,
Sylvia
(cornwall@theinquiry.ca)

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