Royal Commission of Inquiry into the Response of the Newfoundland Criminal Justice System to Complaints Volume One: Report The Honourable S.H.S. Hughes, Q.C. Commissioner Volumes One and Two of the report of the Royal Commission of Inquiry into the Response of the Newfoundland Criminal Justice System to Complaints may be obtained from: Office of the Queen's Printer P.O. Box 8700 St. John's, Newfoundland A1B 4J6 Telephone: (709) 576-3649 Cost: $20.00 per set plus GST and postage (sold in sets of two volumes only). Orders for more than ten sets will receive a ten percent discount. Prices subject to change without notice. Canadian Cataloguing in Publication Data Newfoundland. Royal Commission of Inquiry into the Response of the Newfoundland Criminal Justice System to Complaints 1. Criminal justice, Administration of- Newfoundland. 2. Child abuse - Newfoundland. 3. Child molesting - Newfoundland. I. Hughes, Samuel H.S. II. Hughes Commission. III. Title. KEN 1770.A74 1991 345.718'023 42 KF 9223*ZA7 1991 ISBN 0-920769-86-1 Commissioner The Honourable Samuel H.S. Hughes, Q.C. Commission Counsel David C. Day, Q.C. Clay M. Powell, Q.C Assistant Counsel Sandra M. Burke Executive Secretary Herbert A. Vivian Commission Investigators Weldon H. Orser G. Frederick Home Secretaries Clerks Virginia E. Connors Bride Higgins Patricia M. Devereaux Colleen Power Margaret M. Linehan Support Staff Canadian Corps of Commissionaires Colleen Ryan William Follett Joanne Truscott Boyd Taylor TABLE OF CONTENTS Introduction v Chapter I: Mount Cashel The Christian Brothers of Ireland 1 The Nelson Report 8 Mount Cashel and the State 23 The Centennial 27 Chapter II: The Guardians Social Services and Child Welfare 31 The Police 58 Education 63 Chapter III: De Profundis Brenda Lundrigan and Johnny Williams 77 The Earle Family 83 The Bradbury Report 85 Shane Michael Earle 96 Chesley Riche 98 At Harvey Road 100 At the "Janeway" 102 The Constabulary Investigation: December 1975 107 The Hillier Report: December 18, 1975 115 The Provincial and the Deputy 117 The Evidence of Pearl Bursey 119 The Evidence of Chief Justice Hickman 122 The Second Hillier Report: March 3, 1976 125 No Charges 129 The Confederation Building Meeting 130 Brother Nash Reports to the Provincial Superior 133 Disclosure Forestalled 136 Sergeant Pike and John Kelly at the Soper Inquiry 139 The Letter to Rome 149 The Mount Cashel File in Justice 151 The R.H. Kelly Case 156 The Burton Case 161 The Stead Crawford Letter 165 Chapter IV: Dies Irae 179 The Reappearance of Shane Earle 188 Reopening the Investigation 191 Problems of the Royal Commission 196 Nature of the Complaints 198 Testimony and Charges 201 Recording Mount Cashel Residents at December 1975 205 Chapter V: The Questions in Article I The Answers 207 A Way of Life 219 Chapter VI: Child Welfare Mandate and Method 223 Administration 235 Mount Pearl: A Decade of Foster Care 244 Child Welfare Profile No. 5: A Battered Child in Central Newfoundland 264 A Battered Child on Conception Bay 272 Cases of Sexual Abuse 286 Superintendent Kaiser's Position 310 Whitbourne 1984 312 Sampling Other Profiles 325 11 Chapter VII: Questions in Article II 365 Chapter VIII: Law Avoidance Due Process of Law 375 Avoidance in Practice 377 Avoidance in Principle 387 Police Response to Avoidance 391 The Police Response Panel 403 Consolidating the Response 407 Chapter IX: The Chance of Prevention 420 Prosecutorial Discretion 422 The Mount Cashel Investigation 431 Reasonable (and Probable) Grounds 434 The Director of Public Prosecutions 435 The Case for a Solicitor General 443 Chapter X: Recommendations to the Commission Participants and Others 446 The Panels 452 Chapter XI: Furthering the Administration of Justice The National Crisis 458 Training and the Public Service Commission 461 Complaints by the Public against the Police 462 Justice Delayed 465 Support for Victims and Witnesses of Crime 472 Publicity Under the Summary Proceedings Act, S.N. 1979, c.35 478 The Public Enquiries Act, R.S.N. 1970, c.314 482 The Compensation Issue 486 Chapter XII: Concluding Reflections The Incessant Glare 490 Acknowledgements 497 Consolidated Recommendations 504 Index 517 IV Introduction I retired as a judge of the Supreme Court of Ontario according to the Constitution on the seventy-fifth anniversary of my birth, or October 24, 1988, and late in March 1989 I was approached indirectly and later directly by the Honourable Lynn Verge, Q.C, Minister of Justice and Attorney General of Newfoundland and Deputy Premier in the Government of Newfoundland and Labrador, to undertake the inquiry which is the subject of this report. The appointment of counsel and other matters were settled between us and David C. Day, Q.C. of the bar of Newfoundland and Clay M. Powell, Q.C. of the bar of Ontario decided upon. A minute of the Order in Council appointing these gentlemen and myself was dated on April 14, 1989. Thereafter our dealings were with the Deputy Minister of Justice, Ronald J. Richards, Q.C. and his officers as the minister became increasingly preoccupied with the general election campaign. Mr. Powell and I flew from Toronto on April 18 to confer with Mr. Day and with Herbert A. Vivian, Executive Secretary designate to the Royal Commission, a senior officer of the Department of Justice and former member of the Royal Canadian Mounted Police. The date for the first organization meeting of the commission was set for May 8, 1989. Mr. Powell and I returned to Toronto on April 20 at which time the government of the day was defeated at the polls. The new ministry was as committed as its predecessor to the establishment of an inquiry into the response of the administration of justice and social services to complaints emanating from residents of Mount Cashel Orphanage and other sources, and indeed pledged to enlarge its scope, but v Criminal Justice and Complaints naturally required time to consider to what extent it would adopt the terms of reference contained in the commission issued to me under the great seal of Newfoundland and dated March 31, 1989. In due course this was superseded by a new commission dated June 1, 1989 which is reproduced at the front of this report. While the earlier document is not reproduced it is desirable to point out the differences in emphasis and detail contained in its successor. These documents are divided after preamble into articles I to IV in the case of the version of June 1 and articles I to III in the case of that of March 31, 1989. The opening recital in both are the same. To the second of June 1 has been added the second and third recitals now appearing, the fourth recital being identical with the first of March 31. The first words of article I "to inquire into... " are the same in both documents and paragraphs (cj, (e) and (g) of the second are identical with paragraphs somewhat differently identified in the earlier version. Paragraph (a) discarded the words "then prevailing" which originally followed "police policies". Paragraph (b) is new while paragraph (d) has added the police report of December 18, 1975 to the former reference only to that dated March 3, 1976. In paragraph (f) of article I the reference to files has been changed to "handled in the normal manner" from "registered in the Department in the normal manner" and in paragraph (h) the words "if so, the terms of such bargain" have been substituted for "in return for any reciprocating action" with a notable improvement in style. In the March 31 version paragraph (j) reads as follows: "whether the Director of Child Welfare was aware of the allegations investigated by the police in 1975, and if so, how he was made aware of these matters and what actions, if any, were taken." This was discarded for the existing paragraph VI Introduction (i) of article I of the current terms of reference. Article II is wholly new and greatly enlarges the original charge. Article II of the earlier version which required recommendations as to compensation which might be paid to the complainants was removed; article III is new and article IV of the present version is the same as article III of its predecessor. For the rest nothing was changed except the final paragraph which at March 31 read "AND FURTHER, \ve require you to report your findings with as little delay as possible", on June 1 altered to read in the final version "AND FURTHER, \ve require you to report your findings within ninety days of the commencement of Hearings". In short order it became apparent that this change was unrealistic in view of the mass of evidence offered and uncovered and the provision was removed in its entirety by Order in Council 1166 of 1989, dated December 29, 1989. Henceforth the commission's business with the Government was conducted with and through the Honourable Paul D. Dicks, Q.C., Minister of Justice and Attorney General in the Ministry headed by the Honourable Clyde Wells, Q.C., and his Deputy Minister Mr. James Thistle, Q.C.. The co- operation of government departments with its investigations in compliance with an Order in Council dated April 14, 1989 was abundantly forthcoming. A further Order in Council dated June 2, 1989 seconded Mr. Herbert Vivian to the position of Executive Secretary of the Royal Commission, provided it with a budget of $500,000, and authorized the acquisition of premises without the need for public tender, and the hiring of staff with preference for secondment from the public service. It was now possible to advertise in the Newfoundland Gazette and the provincial press June 28, 1989 as the date of the first organization meeting of the VII Criminal Justice and Complaints commission, setting out the terms of reference and inviting those who wished to seek standing to appear at its public hearings and participate in its proceedings.