Lawyer 'Slippery As an Eel': Smith

By Trevor Pritchard
November 25, 2008

The city attorney who approved a $32,000 settlement that kept a sexual abuse victim from pursuing charges against his alleged abuser was as "slippery as an eel" during the Ontario Provincial Police's 1994 investigation, the Cornwall Public Inquiry heard Monday.

Det. Insp. Tim Smith returned to the inquiry for his third day of testimony Monday, after spending two days in the witness box earlier this month.

In February 1994, the now-retired OPP officer was assigned to re-open the Cornwall Police Service's investigation into allegations that former altar boy David Silmser had been sexually assaulted in the 1960s and 1970s by Rev. Charles MacDonald, a Catholic priest.

A large part of Smith's assignment was to probe whether there had been a conspiracy between the CPS, the local Catholic diocese, and the Crown attorney's office to make the case go away. In September, Silmser had settled for $32,000 with the diocese - a deal, however, that included an illegal clause keeping him from going to the police.

Smith spoke candidly yesterday about the investigation, aiming some of his most potent remarks at Malcolm MacDonald, the lawyer for Charles MacDonald and the author of the settlement documents.

During their October 1994 interview, Malcolm MacDonald made a number of claims that Smith felt at the time were inconsistent with what had been said by other witnesses - including that his client said none of the $32,000 came out of his own pocket.

MacDonald also said at first he felt "reluctant" to lobby the diocese to accept the deal because "that type of blackmail is not the thing to do."

Diocesan officials have testified that at least $5,000 of the $32,000 deal came from Charles MacDonald. Former bishop Eugene LaRocque has told the inquiry Malcolm MacDonald pushed hard for a cash payout to Silmser.

"The only thing that I was definitely sure about (from what Malcolm MacDonald told me) was that it was $32,000," said Smith.

Smith also interviewed the diocese's lawyer, Jacques Leduc, and the local Crown attorney, Murray MacDonald.

"There's a certain amount of credibility that you can assess from somebody that you don't see in statements," Smith told lead commission counsel Peter Engelmann.

"Of all of the three (attorneys) that I interviewed, the least credible, in my opinion, was Malcolm MacDonald."

Malcolm MacDonald pleaded guilty to one count of obstructing justice in September 1995, and a month later received an absolute discharge. He died in 1999.

Smith's 1994 investigation failed to bring any charges against Charles MacDonald. However, charges were laid against the retired priest in 1996 and again in 1998 after more complainants came forward.

All the charges were stayed for good in 2002 after a judge ruled Charles MacDonald's right to a timely trial had been violated.

Silmser, Smith testified, was one of the "most troubled individuals" he'd dealt with during more than three decades in policing - a career that also included investigations of widespread sexual abuse at reform schools in Uxbridge, Ont. and Alfred, Ont.

Ultimately, Smith said he believed Charles MacDonald had abused Silmser on two separate occasions.

But Silmser was also "adversarial" and "selective in what he told us," and Smith told Engelmann he had suspicions he might have been using the OPP to further a civil lawsuit.

"If he wants me to investigate, sir, at least (he could) co-operate with me, give me the full facts," said Smith.

Smith also talked candidly about his mental state before he interviewed LaRocque about Silmser's allegations and the subsequent $32,000 payout.

"I was a bit nervous," he said. "I'd never gone after a bishop before."

The inquiry is exploring how institutions like the OPP reacted to allegations of historical sexual abuse. Testimony resumes today at 9 a. m.


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