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Ontario Hansard - 23-February1978

Hon. Mr. McMurtry: Mr. Speaker, I want to inform you and the members of the Legislature of the investigation conducted by the Ontario Provincial Police into the matter involving Mr. Francis Fox. I would not normally make a public statement on the result of a police investigation, but because of the nature of this case and because of the legal principles involved, I believe that the public is entitled to an explanation to the fullest extent that is reasonably possible for me to give.

Let me say at the outset that this investigation has been thorough and extensive in all respects. Two senior officers of the OPP and two senior officials of my ministry were given responsibility for the investigation.

I am satisfied that their investigation, which was completed yesterday, dealt with all relevant aspects, that all necessary witnesses have been interviewed and that all relevant facts have been brought to my attention. I would also like to state that Mr. Fox and all other persons questioned have co-operated fully.

It is my conclusion that no charge should be brought against Mr. Fox. The senior law officers of the Crown and the police officers involved share that opinion and support it completely.

I want to stress that this decision is based entirely on the circumstances of this particular case and the law and legal principles which relate to it. One principle has been of overriding importance -- equality before the law. The protection of justice extends to every member of the community; therefore, justice must and will be administered even-handedly, without regard to the position of the potential accused.

Mr. Fox therefore is being treated in exactly the same manner as any member of the public would be in a similar situation. The decision to charge or not must be based entirely on the merits of the case.

It would be absolutely unacceptable if a prominent person escaped being charged under circumstances in which ordinary members of the public would be charged. It would be equally unacceptable if a public figure were charged under circumstances in which an ordinary citizen would not be.

It is my belief that an ordinary citizen should not be charged under the set of circumstances that I will set out and, therefore, nor should be Mr. Fox.

I will deal first with the letter to Prime Minister Trudeau which led to Mr. Fox's resignation.

The investigation revealed no sign of any oblique motive on behalf of the author of this letter, a private citizen. In particular, there has been no suggestion whatsoever of blackmail. Nor has there been any suggestion that the complaint was politically motivated or orchestrated by any organized group.

The complaint was simply the complaint of an individual who felt that the Prime Minister should be aware of an alleged misdeed by a member of his cabinet.

The investigation has revealed that the citizen was completely unaware of the ramifications of the complaint and did not contemplate the necessity of Mr. Fox's resignation or the possibility of the laying of criminal charges.

All statements in the letter were fully investigated. At no time did the citizen suggest that criminal charges be pressed against Mr. Fox.

The evidence indicates that Mr. Fox had a brief liaison with a woman who became pregnant. The woman informed Mr. Fox of her pregnancy but told him that she could look after the matter herself, since she felt that she qualified for a therapeutic abortion on medical grounds unrelated to the cause of her pregnancy.

The therapeutic abortion committee of the hospital, after considering her application, granted a certificate permitting the abortion. The attending physician specifically told the woman that the consent of the husband was not required for the abortion.

Acting under this belief, the woman attended at the hospital on the appointed date. After she was admitted, and some hours before the operation was to take place, the hospital administrative staff informed her that her husband was required to sign a form.

As the woman's husband was unavailable since he was out of town, and being afraid that she might be denied the abortion, she asked Mr. Fox to come to the hospital to help her.

Mr. Fox arrived at the hospital and, without question from the staff, was handed a form and asked to sign. Mr. Fox then affixed the name of the woman's husband to the form.

In fact, there was no legal requirement that the husband sign the form. The investigation has revealed that in all likelihood the abortion would have been carried out even if Mr. Fox had not signed the form. In fact, in another case the hospital in question apparently decided to proceed over a husband's failure to sign the document.

In the context of these facts, the senior members of my ministry have reviewed the relevant sections of the Criminal Code. The offence which has been most frequently mentioned in public discussions of this case is that of forgery. However, proving this offence presents very real problems in view of the circumstances of this case and, in particular, the fact that the signature on the document was in all likelihood immaterial to whether or not the abortion would be caned out.

On the basis of the facts I have just cited, I consider that there is evidence upon which a peace officer might have reasonable and probable grounds to lay charges concerning one or more offences under the Criminal Code of Canada. However, this does not settle conclusively the question as to whether or not a charge should be laid.


Because of the considerable public attention which this case has attracted, it is important for me to state to the Legislature the basis on which I, as the chief law officer of the Crown, have considered whether a prosecution would be justified in this case.

A prosecution is not automatically launched in every case where there is some evidence to support the laying of criminal charges. Police officers and the Crown law officers who advise them have broad powers to decide whether or not to launch a prosecution, taking into account all the circumstances surrounding the case.

Henry Bull, the late Crown attorney for York county, and indeed a very highly respected prosecutor for many years, once wrote that the Crown's duty in deciding whether a prosecution is justified is two-fold. The first duty is to determine whether a criminal offence is disclosed by the facts in the sense that a prima facie case is made out. The second duty is then to determine whether a prosecution would be justified in a particular case.

This exercise of judgement was best put by two Attorneys General of England, Sir John Simon and Sir Hartley Shawcross, both speaking in the House of Commons. I quote: "There is no greater nonsense talked about the Attorney General's duty than the suggestion that in all cases the Attorney General ought to prosecute merely because he thinks there is what lawyers call `a case'. It is not true, and no one who has held the office supposes that it is."

Sir Hartley Shawcross supported Sir John Simon's position: "It has never been the rule in this country ... that suspected criminal offences must automatically be the subject of prosecution.... The public interest ... is the dominant consideration."

Sir Hartley outlined how he directed himself in deciding whether or not to prosecute in a particular case. I quote: "The Attorney General may have to have regard to a wide variety of considerations, all of them leading to the final question: Would a prosecution be in the public interest; including in that phrase, of course, in the interests of justice? [In] the ordinary case ... one ... has to review the evidence, to consider whether the evidence goes beyond mere suspicion and is sufficient to justify a man being put on trial for a specific criminal offence.

"In other cases, wider considerations than that are involved. It is not always in the public interest to go through the whole process of the criminal law if, at the end of the day, perhaps because of mitigating circumstances, perhaps because of what the defendant has already suffered, only a nominal penalty is likely to be imposed."

Mr. Speaker, I would stress that not merely is this the law of Canada as well as England, but that it also reflects very accurately the responsibilities of the Attorney General of Ontario, certainly as I have experienced them during the last two-and-a-half-years.

To launch a prosecution in this case would be to bring disproportionately harsh consequences to a person of good character, who has already suffered greatly as a result of his act. This bears on the circumstances of the case itself and not the fact that Mr. Fox assumed high public office after the event in question. The holders of public offices will receive the same treatment under the law as the ordinary citizen, even though the consequences may he more injurious.

My decision does not mean that I think a former cabinet minister should get any more lenient treatment because the consequences of prosecution are far more grave for him as a public figure. My decision stands for the proposition that Crown law officers, in deciding whether a prosecution should be launched or should proceed, must be scrupulous to treat all members of the community equally without any regard to their position.

In this case, the public interest dictates that a number of factors in addition to the evidence be considered in deciding whether a prosecution would be justified.

Firstly, I want to stress that the abortion in question was an authorized therapeutic abortion. The woman dealt with at least three physicians and her application for an abortion was put before the therapeutic abortion committee of the hospital involved. The certificate for a therapeutic abortion was granted solely on medical grounds by virtue of the woman's past medical history. She would have qualified for a therapeutic abortion regardless of the identity of the father.

The investigation has shown that Mr. Fox played absolutely no part in the application for a certificate for the operation. The therapeutic abortion committee did not require the consent of any person other than the woman herself. The attending physician, in fact, informed the woman patient that no such consent was required by law. There is no legal requirement in statute, regulation or hospital bylaw that a husband consent to a therapeutic abortion performed on his wife; nor does the law require that he should release the hospital from any liability resulting from the abortion.

The document that Mr. Fox signed was not a consent as such. It appears that it was simply an unwritten hospital policy that the husband's signature be obtained, whenever possible, on the form in which the wife purportedly released the hospital from responsibility.

Turning to the individuals caught up in this case, I would emphasize that their tragedy must also be a factor to be taken into account. The woman's husband, who might be considered the most aggrieved individual in this case, has requested that criminal proceedings not be taken against Mr. Fox. It goes without saying that such a request cannot be lightly disregarded.

If Mr. Fox were charged, then it would follow that the woman in question must also face criminal charges, since the investigation has revealed that she was equally responsible for Mr. Fox's signing the document. In short, no distinction can be drawn between the degree of participation by Mr. Fox and the woman in question.

Moreover, the case could not be tried without making public the identity of the family involved. Obviously, there are a number of innocent parties in the case. To reveal the woman's identity would cause irreparable harm to all those directly involved. The embarrassment and anguish to innocent parties must be weighed against any possible advantage that might result from bringing criminal charges against either Mr. Fox or the woman in question. On this consideration alone, the merits of not prosecuting far outweigh those of proceeding against the parties involved.

Let me, in conclusion, reiterate what I have stated. Every day police officers and Crown attorneys decide not to prosecute potential accused. On many occasions charges are not laid, even though the police and the Crown would be fully justified in proceeding to prosecute. It is not, therefore, a question of whether the individual is rich or poor, prominent or not. Rather, it is a question of whether proceedings are appropriate, taking into account the public interest and the fair administration of justice.

Obviously, each decision must turn on the facts of each individual case. In this case, I have concluded that there is no more reason to prosecute Mr. Fox than there would be to prosecute any ordinary citizen caught up in the same circumstances. In my opinion, the public interest and the interests of the administration of justice would not be well served by a prosecution.

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