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The Cornwall L'enquête Publique

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The Cornwall L'enquête Publique ARCHIVED - Archiving Content ARCHIVÉE - Contenu archivé Archived Content Contenu archivé Information identified as archived is provided for L’information dont il est indiqué qu’elle est archivée reference, research or recordkeeping purposes. It est fournie à des fins de référence, de recherche is not subject to the Government of Canada Web ou de tenue de documents. Elle n’est pas Standards and has not been altered or updated assujettie aux normes Web du gouvernement du since it was archived. Please contact us to request Canada et elle n’a pas été modifiée ou mise à jour a format other than those available. depuis son archivage. Pour obtenir cette information dans un autre format, veuillez communiquer avec nous. This document is archival in nature and is intended Le présent document a une valeur archivistique et for those who wish to consult archival documents fait partie des documents d’archives rendus made available from the collection of Public Safety disponibles par Sécurité publique Canada à ceux Canada. qui souhaitent consulter ces documents issus de sa collection. Some of these documents are available in only one official language. Translation, to be provided Certains de ces documents ne sont disponibles by Public Safety Canada, is available upon que dans une langue officielle. Sécurité publique request. Canada fournira une traduction sur demande. THE CORNWALL L’ENQUÊTE PUBLIQUE PUBLIC INQUIRY SUR CORNWALL The Honourable Justice Commissioner L’honourable juge Commissaire G. Normand Glaude SUBMISSIONS ON BEHALF OF THE MINISTRY OF THE ATTORNEY GENERAL Attorney General for Ontario Crown Law Office – Civil 720 Bay Street, 8th Floor Toronto, ON M5G 2K1 Fax # (416) 326-4181 Leslie McIntosh Tel: (416) 326-4148 [email protected] Darrell Kloeze Tel: (416) 212-4344 Stephen Scharbach Tel: (416) 326-8437 Judie Im Tel: (416) 326-3287 Christopher P. Thompson Tel: (416) 212-1161 TABLE OF CONTENTS Page no. EXECUTIVE SUMMARY PHASE 1 SUBMISSIONS 1 1. FUNDAMENTAL PRINCIPLES 1 (a) Role of the Crown Attorney 1 (b) Immunity from Review for Exercise of Crown 3 Discretion (c) Relationship between Crown Attorneys and 4 Police (d) The Crown’s Disclosure Obligations 11 (i) The Martin Report 12 (ii) MAG Crown Policy Manual 14 (iii) Practice Memorandum, PM [2005] No. 35 15 (iv) All Relevant Material in the Possession or 16 Control of the Crown (v) Timing of Disclosure 17 (vi) Relationship between the Crown Attorney 18 and Police in Respect of Disclosure (vii) The LeSage-Code Report and Campbell 20 Report (e) The Cornwall Crown’s Office 1972-1991 21 (i) Staffing and Work Load 21 (ii) Working with Police 22 (iii) Interactions with Victims/Witnesses 23 (f) Current MAG Policies 24 -ii- Page no. 2. PRE-PROJECT TRUTH INVESTIGATIONS AND 31 PROSECUTIONS (a) Silmser - 1993 CPS Investigation 31 (i) Overview 31 (ii) Issues arising out of MacDonald’s 33 involvement in the Silmser complaint 1. Pre-charge advice re RPG 33 2. Pre-charge advice re withdrawal 38 3. Conflict of interest 40 (b) Silmser - 1994 Ottawa Police Service 44 Investigation (c) Silmser - 1994 OPP Investigation 45 (d) Malcolm Macdonald Prosecution 47 (i) The investigation into Malcolm MacDonald 47 (ii) Crown opinion on Malcolm MacDonald 48 brief and charges laid (iii) Crown Flanagan assigned carriage of the 49 obstruct charge against Malcolm MacDonald 3. PROJECT TRUTH 53 (a) Inception 53 (i) Fantino brief 53 (ii) Dunlop Binders 54 (iii) Involvement of Garry Guzzo 59 (iv) Resourcing 67 (v) VWAP services 77 -iii- Page no. (b) Project Truth Prosecutions and Investigations 89 (i) Marleau complaints 89 1. Investigation and Charges Laid 89 2. Commencement of Prosecutions 90 3. Preliminary Matters 91 4. Trials 94 5. Issue of Confessor-Penitent 97 Privilege in R. v. Lapierre 6. Other Godin Prosecutions 99 (ii) Father MacDonald Prosecution 101 1. Investigation and Charges Laid 101 2. Commencement of Prosecution 103 3. Joinder of Second Set of Charges 106 4. Transfer of prosecution to Shelley 107 Hallett 5. Transfer of prosecution to Lorne 111 McConnery 6. Adjournment and stay application 114 (iii) Jacques Leduc Prosecution 118 1. Investigation and Charges Laid 118 2. Commencement of Prosecution 119 3. Leduc trial 121 4. Inadvertent failure to provide 124 relevant disclosure 5. Transfer of prosecution file to Lidia 127 Narozniak 6. Malcolm MacDonald sexual assault 128 prosecution 7. Brian Dufour opinion letter 129 8. Crown Response to the 129 Projecttruth.com and Projecttruth2.com Websites (iv) Review of Crown Briefs 136 -iv- Page no. (v) Leduc Retrial 141 1. Overview 141 2. Attempts to Prepare Dunlop for the 143 Disclosure Application 3. Decision Not to Call Reply Evidence 148 on the Disclosure Motion 4. Section 11(b) Application 149 (c) Other Project Truth Prosecutions 152 (i) Summary 152 (ii) R. v. Bernard Sauve 152 (iii) R. v. Keith Jodoin 156 (iv) R. v. Romeo Major 160 (v) R. v. Jean Luc Leblanc 164 4. NON-PROJECT TRUTH INVESTIGATIONS AND 170 PROSECUTIONS (a) Advice to CAS 171 (i) Second Street Group Home/Lapointe 174 Prosecution (ii) Lapensee Foster Home 184 (iii) Cieslewicz Foster Home 187 (b) Barque – 1982 Investigation 190 (c) Leblanc - 1986 Prosecution 195 (i) Overview 195 (ii) Issues with the Leblanc Prosecution 197 (d) R. v. Marcel Lalonde and Related Investigations 200 (i) R. v. Marcel Lalonde Prosecution 200 (ii) Nadeau Threats Investigation 207 (iii) C-8 Perjury Investigation 209 (iv) Dunlop Investigations: Disclosure and 210 Perjury -v- Page no. (e) Other 215 (i) Greggain Investigation 215 (ii) Deslauriers Prosecution 216 (iii) Desjardins Prosecution 218 (iv) Allen Prosecution 225 (v) Landry Jr. Prosecution 229 (vi) Sabourin Prosecution 231 5. RESPONSE TO INSTITUTIONAL ISSUES 233 6. PHASE 1 POLICY SUBMISSIONS 239 (a) Role of the Ministry of Children and Youth 239 Services and Children’s Aid Societies in the Provision of Child Protection Services (i) The Duty to Report Child Abuse and 241 Neglect (ii) The Child Abuse Register 245 (iii) Recent Developments in Child Welfare 248 Legislation, Policy and Procedures: Child Welfare Transformation, 2006 to present (b) Media and Sub Judice Rule 250 (i) General Legal Principles 250 (ii) Sub Judice Rule 251 (iii) Sub Judice Rule and the Attorney General 256 (c) School Boards 260 (i) Overview 260 (ii) School Board Resources 261 (iii) Criminal History Screening 264 7. PHASE 1 RECOMMENDATIONS 267 -vi- Page no. PHASE 2 SUBMISSIONS 268 1. SERVICES FOR MALE VICTIMS OF SEXUAL ASSAULT 268 FUNDED BY THE OVSS 2. APOLOGIES LEGISLATION 276 3. PHASE 2 RECOMMENDATION 276 I EXECUTIVE SUMMARY The Ministry of the Attorney General for Ontario was granted standing for the purpose of both Phase 1 and Phase 2 of the Inquiry, because the Attorney General is responsible for superintending all matters connected to the administration of justice in Ontario, and in particular because Crown Attorneys are agents of the Attorney General for the purpose of criminal prosecutions. PHASE 1 SUBMISSIONS The Phase 1 submissions are divided into seven main sections: Fundamental Principles, Pre-Project Truth Investigations and Prosecutions, Project Truth, Non- Project Truth Investigations and Prosecutions, Response to Institutional Issues, Phase1 Policy Submissions, and Phase 1 Recommendations. 1. Fundamental Principles Six fundamental principles are discussed in this section. The first is the role of the Crown Attorney in the criminal justice system. The office of Crown Attorney is a quasi-judicial office. Courts have repeatedly emphasized that it is not the role of the Crown Attorney to secure a conviction, but rather to assist the judge and jury in ensuring that the fullest possible justice is done. The second fundamental principle is the immunity from review of the exercise of discretion by the Crown Attorney. Because of the role of the Crown Attorney, the II law protects the exercise of core Crown discretion from scrutiny by courts or tribunals, except in the case of malice. As a result, the law recognizes that "reasonable Crown counsel will reasonably differ" about the exercise of discretion from time to time and honest exercises of Crown discretion should not be "second-guessed". The third fundamental principle that is explored is the relationship between Crown Attorneys and the police. The Crown Policy Manual contains a policy on the relationship between the police and the Crown. The fourth fundamental principle is disclosure obligations. Again, the Crown Policy Manual addresses disclosure obligations, as have a number of recent reports such as the LeSage-Code Report. The fifth and sixth sections are overviews of the Cornwall Crown Attorney’s office and of current Ministry policies. 2. Pre-Project Truth Investigations and Prosecutions Under this heading, four matters are examined: three investigations into the complaint made by David Silmser, that is, the 1993 Cornwall Police Service investigation, the 1994 Ottawa Police Service Investigation, and the 1994 OPP investigation; and the prosecution of Malcolm Macdonald for attempting to obstruct justice. III 3. Project Truth The third main section of the Phase 1 submissions is “Project Truth”. This section deals with two main topics: (i) the inception of Project Truth, including the resourcing of Project Truth, the loss of the binders that were delivered to the Ministry by Perry Dunlop of the CPS, and the involvement of Garry Guzzo, MPP; and (ii) various prosecutions including the Leduc and Father Macdonald prosecutions, the issue of providing opinions on police briefs, and other investigations and opinions. The Ministry’s position with respect to the first topic is: (i) the Project Truth prosecutions were resourced in a manner consistent with the practice for resourcing other prosecutions at that time. Now, Project Truth would likely be treated as a "major case" within the meaning of the Major Case Management Protocol which was established in 2001. With respect to the second topic, the Ministry submits: (ii) the loss of the Dunlop binders was an isolated event.
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