Slowly making sense

Hearings resume at 0930 hours (9:30 am) this morning, Wednesday, 14 January 2009.  And, bite my tongue, wonder of wonders, Lorne McConnery is still on the stand.

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This whole recurring issue  of conflict of interest in the Cornwall scandal and cover-up has been rumbling in my mind as McConnery testifies.  I have put together a few thoughts but not ready to post.  I will also try to get the Pelletier Griffiths memo ready to post.  I will have to redact a name so it will take some time.

McConnery’s testimony is hard to keep track of, specifically as it relates to his decision that there were no grounds to lay conspiracy charges.  Again, I strongly suggest people read the transcripts.  It is impossible to cover all the ups and downs and ins and outs of much of the testimony we are hearing.  The only way to sort it out is to tune into the hearings live or read the transcripts.  Yesterday’s is posted.

A few comments, observations and thoughts on McConnery’s testimony to date:

(1)  Alfred
McConnery seems to think he may have had some work related to the Alfred Training School scandal.

Seems to think?  Yes.  Really.  That’s what he said:

“And in the — the second time I was a member of the Crown Attorney’s Office in Ottawa, I seem to think I did something that related to the Alfred Training School investigation, but it’s not clear to me now what prosecution it was.”

Did he or did he not do some work on the Alfred investigation?

(2)  2001:  McConnery on board

On 02 April 2001 McConnery was called in to take over the prosecution of Father Charles MacDonald. 

Charlie was scheduled to go to trial 28 May 2001.  This was on the heels of the Leduc “trial” at which Crown attorney Shelley Hallett was accused of wilful non disclosure, and that after OPP Project Truth officers blamed Hallett for non disclosure of information which was in fact contained in the notes of a Project Truth officer, and those notes had not been disclosed prior to trial.

McConnery was told two persons had offered to assist him, (i) Kevin Phillips, an Ottawa assistant Crown who would assist hands-on in Ottawa and Cornwall, and (ii) Christine Bartlett-Hughes, a member of the Criminal Law Division in Toronto who would assist with legal motions and research

(3) Charges married twice

When McConnery took over the file, and as of 18 October 2000, there were 19 charges and nine complainants ( “alleged” victims) Father Charles MacDonald.  This was the result of two consolidations of charges.

The first charges were laid 06 March 1996.  The complainants were David Silmser, John MacDonald and C-3.

The second set of charges – which were ‘married’to the first – were laid 26 January 1998. The complainants were C-8, C-4, C-5, Robert Renshaw and Kevin Upper.

The third set of charges – which were married, or joined, to the others – were laid 10 April 2000.  The complainant was C-2.

(4)  Charter Rights to speedy trial

We know that Michael Neville (Charlie) got an adjournment during the 1997 preliminary hearings in Ottawa because he was tied up with the Somalia inquiry.  We heard evidence that Project Truth officer Joe Dupuis overheard Neville tell Crown attorney Robert Pelletier in the Ottawa courthouse that Charlie would waive his 11 (b) right to a speedy trial. 

When McConnery arrived on the scene he said he was anticipating that Father Charlie would file a Charter 11 (b) application for adjournment.

On 25 April 2001 Charlie’s defence filed for an adjournment.  It seems that Neville had a murder trial somewhere in Lanark County which was delayed because the Crown at that murder trial had asked for an adjournment to retain another expert.

Phillips argued for a waiver of Charlie’s 11 (b). Charlie’s lawyers refused claiming, believe it or not, that it was the Crown’s fault the murder trial in Lanark county was delayed. (I gather from McConnery’s remarks that this is referred to as the invisible Crown delaying the trial. In truth the delay had nothing to do with Charlie’s trial and was no fault of Pelletier, but )

Charlie’s trial was adjourned until 18 March 2002.  There was no waiver granted – the judge hearing the motion  accepted an argument from Charlie’s legal defence that the waiver should be decided at trial by the trial judge on 18 March 2002.

Another 11 months!

McConnery attempted several times to get the trial date advanced.  To no avail.

Charlie eventually ‘walked’ – Justice Dan B Chilcott agreed that his 11 (b) Charter right to a speedy trial had been violated!

Chilcott is an Ottawa judge.  He and the two judges who took the bench at the first Leduc “trial” – Colin McKinnon, and James Chadwick – were elected as benchers to the Law Society of Upper Canada in 1987.  They were, according to Chadwick “a packaged deal from Ottawa” for which “We campaigned hard.”

(5)  What of Perry’s rights?

There were nine boxes referred to as the Dunlop boxes which contained in the order of 10,000 pages of documents.  The boxes had originally been delivered to the Cornwall Police Service and were in possession of the OPP and Crown Shelley Hallett.  These boxes are distinct from the four volumes of materials which Perry filed with the Attorney General and Solicitor General in April 2001.  There may have been some overlap in content but they are identified as separate sets of materials.  We have heard evidence that when she first received the boxes Shelley Hallett had concerns about privilege and privacy issues. Included in materials were some of Perry’s private documents such as disciplinary records.

Some of the materials from those nine boxes had already been disclosed to Charlie’s defence by Hallett.

McConnery, however, said he had nothing to show him which documents had or had not been disclosed.

McConnery wanted to fulfill disclosure obligations. After the Leduc disclosure debacle he apparently decided to err on the side of caution.  He would disclose the contents of the entire nine boxes. 

McConnery arranged for an Ottawa printer to make ten complete copies of the materials in the nine boxes.  He would then have a set for disclosure and other sets for distribution to whomever as needed.

However, at the same time McConnery was getting set to disclose and getting all of these duplicates the issue of Perry’s privilege and privacy was under discussion and as yet unresolved. 

April 2001 email exchanges between Hall and two assistant Crowns helping McConnery out in Ottawa indicate that the matter was then under discussion and as yet unresolved.  OPP Det. Insp. Pat Hall had apparently spoken to Perry.   According to Hall Perry had initially agreed everything could be disclosed, but after speaking to Helen had decided he should check with his lawyer. That’s where the matter stood. The emails were not copied to McConnery.

McConnery does not recall if Perry ever waived privilege. His “belief” is that he and Phillips would have gone trough the boxes and removed certain private materials.  According to McConnery :  “It wasn’t sent out bolus to Mr. Neville without us having any review of it. I don’t believe —“

“I don’t believe…” !

There seems to be considerable uncertainty there? 

McConnery testified that he is certain he read every single page of those nine boxes –  but he’s not sure when.

No matter.  The bottom line is the nine boxes were disclosed to Neville 15 August 2001.  I get the impression that privilege had not been waived.

Which of Perry’s personal and private documents went with the package to Neville and then all over the place and who knows where is up in the air.

Is this yet another instance of turning a blind eye to Perry’s rights?  In the rush to ensure the legal rights of an “alleged” paedophile were protected were those of the whistleblower violated?

How many times since Perry stepped up to the plate for children have his privileges and rights been trampled?  I have lost count. 

(6) Inquiry in mind

McConnery was thinking in terms of a public inquiry from the time he first became involved:

MR. McCONNERY: Well, I think I came to Ottawa and got involved in this and I was aware of MP Guzzo’s position. I was made aware of that as part of the overall picture.

 It seemed to me that what was coming down the line here was a public inquiry. I mean, there was some noise about that even way back then, and so I’m thrust into this as the prosecutor of Father MacDonald who happened to be the original target of the allegation of sexual assault, and I just felt it was incumbent on me to try to track the time I spent on what I was doing.

McConnery explained that that is probably one reason he took so many detailed notes, apparently a rather unusual practise for himself.

(7) No out-of-jurisdiction judge

During a telephone conversation Shelley Hallet expressed concern to McConnery over the delay in Charlie’s trial.  She also suggested the trial should be heard by an out-of-jurisdiction judge.

An email between Phillips and Pearson was entered into evidence in which it seems McConnery and Phillips were considering that it would in the best interests of the perception of justice to have an out-of-jurisdiction judge:

“We are considering bringing a motion to have an out-of-jurisdiction judge hear the case. Our view is that in light of the circumstances giving rise to the Crown appeal in R. v. Leduc, it would be in the best interests of the appearance of justice that an out-of jurisdiction judge be brought in.”

For whatever reason an application for an out-of-jurisdiction judge was never filed.

(8 )  No VIP meet therefore no conspiracy

According to McConnery, there was no conspiracy; there were no grounds to lay charges of conspiracy against anyone.

McConnery’s testimony on this is quite astounding not to mention confusing.

McConnery was given the Project Truth investigative conspiracy brief for his opinion.

It turns out that McConnery’s take on conspiracy was limited to what did or did not happen at Malcolm MacDonald’s summer cottage on Stanley Island in late 1993, a gathering frequently referenced as the VIP meeting. 

As regards a conspiracy charge McConnery was looking at ALL those allegedly involved – he did not consider the possibility of charges if there was evidence of conspiracy between two or three of the group.  It was an all or nothing.

McConnery’s take on the conspiracy allegations then boiled down to deciding there was no conspiracy because there was no VIP meeting on Stanley Island.  He seems to have reached that conclusion because he concluded Ron Leroux wasn’t credible and there was no corroboration of Ron Leroux’ allegation of a VIP meeting.

(9)  Callaghan to Leduc’defence

McConnery was not aware that Jacques Leduc was allegedly at the VIP meeting.  Neither it seems was Glaude.

John Callaghan certainly was.  He leapt to the fore to imply that Perry Dunlop prompted Ron to add Leduc to the list of VIPs.

(10)  Ron Leroux not credible

McConnery testified that he had troubles with Ron Leroux’ credibility from the time he reviewed an Orillia police video interview of Ron.

I am keen to hear what was it that prompted McConnery to draw that conclusion.

(11)  Singing from the same song sheet

McConnery seems to be singing from the same song sheet as all other institutional; witnesses.

Apparently when reaching his decision that there was no conspiracy he relied not only on the Rona Leroux materials but on Perry Dunlop’s statement of claim.

When asked why he would utilise Perry’s statement of claim McConnery replied:

MR. McCONNERY: It seemed to me to be evidence of a rather unholy alliance between Ron Leroux and Perry Dunlop.

When asked if he felt Perry had independent knowledge of “these gatherings or associations” (re the Clan and Stanley Island VIP meet)  McConnery replied:

MR. McCONNERY: My recall would be that his knowledge came from Ron Leroux.

MS. SIMMS: Okay.

MR. McCONNERY: And be mindful that they also shared the same lawyer, Mr. Bourgeois.

What did Bourgois have to do with whether or not Ron’s allegations were credible and whether or not there was in fact a VIP meeting on Stanley Island?  Is McConnery actually inferring or implying that Bourgeois was in on a “conspiracy” with Ron Leroux and Perry Dunlop?  

(12) Disturbing

Disturbing beyond measure to hear McConnery explain his thoughts on an “alleged” victim who said he was molested by Father Kevin Maloney at St. Joseph’s training school in nearby Alfred, Ontario.

In McConnery’s view victims from Alfred had every opportunity to come forward during the Alfred investigation, and the Alfred investigation was highly publicized, and victims were encouraged to come forward, and victims had every opportunity to come forward, and a decision had been made by the powers that be (Smith?  Pelletier?) that once Alfred was wrapped up that would be the end of it and no further charges would be addressed!!!

Obviously these men do not understand adult male victims of childhood same-sex sexual abuse.  That’s just not the way it works.  These men struggle for years and go through a personal hell trying to get the courage to come forward.  It’s not an easy step.  I personally wish it wasn’t that way, but I have come to understand and accept it as fact.  I encourage victims to come forward.  I believe in part that justice should be rendered and children at risk protected.

But here is a Crown who sees delayed disclosure as an issue of credibility.  And here we hear of police officers and whoever else was involved in the Alfred decision slamming the door in face of victims who couldn’t get the courage to come forward at a time suited to the powers that be.

Disturbing beyond measure.

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A pick-up from the testimony of Justice Peter Griffiths.

 An interesting exchange on Monday between Justice Peter Griffiths and Neil  Kozloff (OPP) I want to share.  Look at Kozloff’s attempt to have the record changed so that it no longer shows that, on the one hand, according to Det. Inspector Smith’s notes,  Griffiths said there was objectively enough evidence to convict Charlie,  and on the other hand, Griffiths written opinion was that there was no reasonable prospect of conviction:

MR. KOZLOFF: — it’s the entry — I think it’s 14:45. It says, “Peter Griffiths called.”

MR. JUSTICE GRIFFITHS: Yes.

MR. KOZLOFF: And the first thing he has is “Priest, RPG, objectively enough credible evidence.”

MR. JUSTICE GRIFFITHS: Yes.

MR. KOZLOFF: And I’m going to try to clarify this with you. Let’s just talk about what’s going on here. He’s waiting for an opinion from you.

MR. JUSTICE GRIFFITHS: Yes.

MR. KOZLOFF: This is your first opportunity to impart that opinion to him orally?

MR. JUSTICE GRIFFITHS: Okay.

MR. KOZLOFF: Fair?

MR. JUSTICE GRIFFITHS: Yes, I think so.

MR. KOZLOFF: In other words, he hasn’t got your written opinion yet.

MR. JUSTICE GRIFFITHS: No, he hasn’t.

MR. KOZLOFF: That doesn’t come until the next day.

MR. JUSTICE GRIFFITHS: That’s right.

MR. KOZLOFF: You don’t write it until the

MR. JUSTICE GRIFFITHS: That’s correct.

MR. KOZLOFF: Okay.

And so I’m going to suggest to you what he’s doing is writing down what you’re saying to him —

MR. JUSTICE GRIFFITHS: I think —

MR. KOZLOFF: — what you’re telling him.

MR. JUSTICE GRIFFITHS: — I think that’s fair.

MR. KOZLOFF: And so I’m going to suggest to you that he’s left out a word and that’s the word “not.”

MR. JUSTICE GRIFFITHS: He might have.

MR. KOZLOFF: And I’m going to suggest to you that the word “not” should appear after the word “objectively.”

MR. JUSTICE GRIFFITHS: Mr. Kozloff, I was aware of the difference between the two. I don’t know whether he left a note — a “not” out or whether after talking to him and this experienced officer says he doesn’t have an honest belief, whether that made me go back and re look at my — at the materials. I mean, I honestly don’t know, Mr. Kozloff.

MR. KOZLOFF: Well, I think if you look at the opinion letter you wrote, you’re pretty strong on the issue of there is not — there isn’t the objective evidence.

MR. JUSTICE GRIFFITHS: It didn’t seem wishy-washy to me —

MR. KOZLOFF: No.

MR. JUSTICE GRIFFITHS: — but —

MR. KOZLOFF: So my suggestion to you; the more likely version is that either you misspoke yourself and said, “there is credible evidence” when you intended to say “there is not” or he missed a word; one of the two.

THE COMMISSIONER: Or he changed his mind.

Or he did say —

MR. KOZLOFF: Or he changed his mind.

THE COMMISSIONER: — it was — when he said that there may be enough credible evidence and he changed his mind when he wrote it up.

MR. KOZLOFF: I’m trying to convince him that he didn’t change his mind.

THE COMMISSIONER: I know that.

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Must tune in more closely,

Oh my!  I just now heard that Justice Chilcott was Neville’s pick for judge!!  The first judge was contested because Tim Smith had conflict issues.  The next was Neville’s pick.

All the non-sense ever so slowly starts to make sense….

Enough for now,

Sylvia

(cornwall@theinquiry.ca)