Macdonald Could Stop Inquiry From Proceeding

September 22, 2006

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The potential to stop the Cornwall Public Inquiry in its tracks may be in the hands of a city priest.

Inquiry lawyers confirmed Thursday attorneys for Rev. Charles MacDonald have filed an application seeking the right to appeal a recent Ontario Divisional Court decision upholding a ruling which would allow sexual abuse victims to testify at the hearings.

The appeal, if granted, would ask the Ontario Court of Appeal to consider ruling against a May 1 decision by Comm. Normand Glaude allowing testimony regarding sexual abuse allegations to be heard by the commission.

At the time, a lawyer for MacDonald suggested allowing victims to testify would turn the inquiry into a criminal trial.

"It's our position that our clients did nothing wrong," said Guiseppe Cipriano prior to Glaude's ruling. "For (victims) to come here and make accusations against my clients will inherently turn this into a trial."

If the right to appeal the divisional court decision is allowed, MacDonald would be in a position to seek a stay of proceedings at the inquiry, effectively shutting it down.

"We are, unequivocally, ready to proceed as planned on Oct. 3," said Peter Engelmann, lead counsel for the inquiry, when asked if the application would result in a further delay of the hearings.

"If they (MacDonald's lawyers) come forth with a stay application, we are ready for that."

A stay of proceedings would mean the inquiry could not hear testimony related to matters contained in the appeal.

That would mean any individuals expected to testify about allegations of abuse levelled at MacDonald would be precluded from taking the stand until the appeal is heard and a decision rendered.

Cipriano said at the time of his original argument the commission does not have the jurisdiction to hear what he described as "unfounded" allegations against individuals and any such testimony would ultimately make his clients appear guilty in the eyes of the community.

"The commission cannot leave my clients factually guilty," said Cipriano.

"The public will see the allegations as criminal accusations that are unanswered."

Cipriano could not be reached for comment Thursday.

When hearings resume Oct. 3, it's expected the inquiry will begin hearing initial testimony from members of The Victims Group.

A lawyer representing the group said Thursday given the number of victims expected to take the stand - dozens of men and women are expected to testify - it may be some time before the inquiry hears from alleged victims of MacDonald.

"The first few witnesses we anticipate will be called don't have anything to do with MacDonald," said Dallas Lee, an attorney with Ledroit Beckett. "Of course, we're disappointed to hear this application has been made, but we'll have to wait and see what happens."

When the three-member judicial panel upheld Glaude's ruling, they did so without having to hear any arguments in support of the commissioner's position.

"I can't imagine a stronger indication of support for a ruling than not having to hear from the respondents," said Lee. "It was obvious the inquiry needs to hear from all the victims."

Lee said one of the most telling examples of the scope of this inquiry is evidenced by the fact nobody is yet suggesting the inquiry will be actually be derailed by any appeal by MacDonald.

"There are more than enough victims to hear from before we even get to anybody who had any dealings with (MacDonald,)" said Lee. "That goes to show how horrific this situation is."

A separate judicial court ruling Thursday has resulted in a change to the inquiry's rules of practice and procedure.

Under the original rules, all documents believed to be relevant to the inquiry were to be handed over to the commission for review, including documents thought to be protected by lawyer-client privilege.

A ruling by the court has resulted in the rule being changed to exclude such privileged documents.

If an argument is made over the disclosure of a document believed to be protected, that document must be reviewed by a superior court judge who will determine whether it is, in fact, privileged and therefore should not be disclosed to the commission.

Both the Cornwall Community Police Service and the Alexandria- Cornwall Roman Catholic Diocese had argued against the release to the commission of hundreds of privileged documents.

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