Dubin Inquiry’s lead counsel calls for official probe into junior hockey scandals

Robert P. Armstrong: ‘Given it’s our national sport, it’s our national pastime — for many, hockey is almost a religion — I think there would be a tremendous benefit to clearing the decks on this, in getting the whole story out, and on an independent basis’

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Is an official federal inquiry the next important step in the junior hockey scandal that has shaken Canada down to its skate blades?

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And should it be?

Many Canadians are calling for one, including several angry MPs at last week’s latest special committee hearings on Parliament Hill.

Robert P. (Bob) Armstrong was lead counsel in the most famous sports-related government probe in Canadian history, the Dubin Inquiry into steroid use in domestic sports. In a phone interview over the long weekend, Armstrong said he thinks the current sexual assault scandals in junior hockey, and the controversial management of it by that sport’s national leaders, warrant a federal inquiry.

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“I think everybody would be interested in clearing the decks on this, and getting to the bottom of it,” said the 84-year-old Armstrong, a Queen’s Counsel appointee in 1978, an Ontario Court of Appeals judge from 2002-13, and currently a resident arbitrator and mediator at Ontario-based Arbitration Place.

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“It seems to me that given it’s our national sport, it’s our national pastime — for many, hockey is almost a religion — I think there would be a tremendous benefit to clearing the decks on this, in getting the whole story out, and on an independent basis.”

The Dubin Inquiry was launched only days after Canadian sprinter Ben Johnson tested positive for steroids at the 1988 Summer Olympic Games in Seoul, South Korea, which stripped him of the blockbuster gold medal he’d won in the 100-metre dash, in then world-record time, 9.79 seconds.

Johnson won that gold on Sept. 24. Three days later he was stripped of it, and left South Korea in disgrace.

Ben Johnson examines a bottle of steroids at the Dubin Inquiry in Toronto on June 13, 1989.
Ben Johnson examines a bottle of steroids at the Dubin Inquiry in Toronto on June 13, 1989.

Just eight days later, on Oct. 5, 1988, the Canadian government launched a commission of inquiry “into the use of drugs and banned practices intended to increase athletic performance.”

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Charles L. Dubin, then associate chief justice of Ontario, was appointed commissioner of the inquiry. Armstrong oversaw the investigation and was the lead questioner at many months of hearings, which began in December 1988 and continued deep into 1989. Hundreds of hours of those hearings aired live on Canadian TV.

Dubin submitted his 581-page report in 1990. Its benefits were two-fold — first, in that it not only got to the bottom of the issue (steroid use not only in Canadian sports but around the world, and other manners of cheating) in revealing things that otherwise surely would never have come out in that era, and, two, it offered important recommendations that were implemented and which, indeed, mostly cleaned up drug cheating in Canadian Olympic sports.

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In short, the inquiry served its purpose, and then some.

The Canadian Ministry of Justice’s Inquiries Act, last amended in April 2005, spells out when and how a federal inquiry may be called and conducted.

According to the act, the Governor in Council — that is, the Governor General acting by, and with, the current federal government’s cabinet — “may, whenever (it) deems it expedient, cause inquiry to be made into and concerning any matter connected with the good government of Canada, or the conduct of any part of the public business thereof.”

“That’s very broad,” Armstrong said. “In the Dubin Inquiry, all amateur sports were in a sense under the general jurisdiction of the federal government, in that basically, particularly in the Olympic area, they were funded by taxpayers’ money.

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“The issue here, of course, is that only 6% of Hockey Canada is funded by the federal government, I take it. So somebody might say that (these hockey scandals) really don’t come within that broad definition of being ‘part of the public business’ of Canada. But that said, hockey is our national sport, it’s in our DNA, really, and there isn’t a Canadian who doesn’t recognize the importance of hockey in the life of this country.”

If an inquiry were to be ordered, “it presumably would be run just as the Dubin Inquiry was run,” Armstrong said.

Per the act, more than one commissioner may be named to oversee it. Such commissioners “have the power of summoning before them any witnesses, and of requiring them to (a) give evidence, orally or in writing, and on oath (or) on solemn affirmation; and produce such documents and things as the commissioners deem requisite to the full investigation of the matters into which they are appointed to examine.”

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Inquiry commissioners “have the same power” to compel full and honest testimony of witnesses “as is vested in any court of record in civil cases.” That includes issuing “a subpoena or other request or summons, requiring and commanding” any witness to (a) appear when called, (b) to “testify to all matters within his knowledge relative to the subject matter of an investigation, (c) “to bring and produce any document, book or paper that the person has in his possession, or under his relative control, relative to the subject matter of the investigation.”

Witnesses are permitted to be represented by a lawyer, and may be reimbursed for “reasonable travel expenses.” Any witnesses who fail to attend or cooperate “without valid excuse,” or who refuse “to produce any document, book or paper in his possession or under his control,” or who refuses to be sworn in or to affirm, or who refuses to “answer any proper question put to him” while giving testimony “is liable, on summary conviction … to a fine not exceeding $400.”

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One of the most stunning aspects of the Dubin Inquiry was, by and large, how honest all the cheaters Armstrong called to testify. Time and again, they spilled it all — how they cheated, why they cheated, the nature of drug-cheating down to the finest details, etc. First and foremost was Johnson’s personal track coach — and the most powerful one in Canada at the time — Charlie Francis.

Sprinter Angella Issajenko also shocked the country, time and again, with her frank revelations.

What compelled such honesty? Surely not the threat of a $400 fine for lying, under terms of the Inquiries Act, or whatever the paltry amount have been then. (That said, it must be pointed out it is a violation of the Criminal Code of Canada to commit perjury “with the intent to mislead” while under oath, or solemn declaration. Meaning anyone caught lying while testifying at a federal inquiry would wind up with a criminal record.)

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Olympic track medallist Angella Issajenko shown testifying at the Dubin inquiry.
Olympic track medallist Angella Issajenko shown testifying at the Dubin inquiry.

“Charlie Francis decided he was going to tell the truth,” Armstrong said. “He knew he was going to be under oath. He was our No. 1 witness. And then Angella Issajenko kept a personal diary of all the times she took (the steroid) Stanazolol or any drug of any kind. It was a daily (record). They were our first two (track and field) witnesses.”

Earlier at the inquiry, cheating Canadian weightlifters described how they had used syringes to insert drug-free urine into their bladders.

Thus, a high bar of honesty was set for all subsequent Dubin Inquiry witnesses.

“It wasn’t anything clever that we did as lawyers,” Armstrong said. “They decided it was time to tell the world what was going on. They’d really been caught point-blank, so there was no doubt they’d had the drug in their systems.

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“Ben (Johnson) did have some kind of initial excuse, but it was very flimsy. Charlie and Angella decided they were going to tell the truth. Then Ben, who was separately represented, changed his mind and he in fact laid it all out, too.”

How would a hockey-scandal inquiry proceed at the get-go? “The first thing,” Armstrong said, “is defining what the nature of the problem is, and then taking advice from the experts, and others, as to what should be done to solve the problem — if there is a problem.

“They may find at the end of the day that there really isn’t a problem. I don’t know. I’m not in the business of making a pre-judgment on something just on the basis of occasional stuff that appears in the public media, before everyone involved has an opportunity to have their say.”

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In the case of the current hockey scandals, a specific focus, or focuses, would be integral.

For instance, would a federal inquiry investigate merely the sex scandals themselves — the reported allegations against numerous players from both of Canada’s otherwise beloved World Junior hockey teams of 2003 and 2018?

Or would it probe all toxic elements of junior hockey itself?

Or the appalling decisions made by hockey’s highest leaders — in their non-profit enterprise that rakes in tens of millions of dollars per year in revenue — to cover up all of the above, over so many years?

Or every dang bit of it?

Whatever scope a federal inquiry into hockey might be charged with, investigators backed, and empowered, by such an esteemed inquiry would begin it.

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“We had a team of investigators that went out and, first of all, did a very thorough investigation, interviewing people and so on. And they were able to pass on the information to us and we, as (lead inquiry) lawyers, followed that up and did our own interviewing and investigating of those we thought we wanted to call as witnesses. So that’s the way it works.

“There’s public funding available to assist in all that.”

At last week’s special parliamentary hearings, several MPs were mightily worked up over the hockey scandals.

“You know, hockey is Canada’s game,” Conservative MP Kevin Waugh said. “It’s been in everybody’s backyard. This hits deeply. I stand by my earlier comments, not only Hockey Canada, but yesterday I called on Sport Canada too. We have to blow up Sport Canada as much as (some) want to blow up Hockey Canada. It’s a culture that we know, in this country, has gone on too long. We’ve all agreed with that. But there’s heavy lifting to do … We need this. We need a cleansing in hockey, we need a cleansing in sport.

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“We haven’t got all the answers.”

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Liberal MP Anthony Housefather told hockey leaders: “There needs to be a bigger cultural change in Hockey Canada than you’re currently promising today … The public has lost confidence in (you).”

NDP MP Peter Julian said the allegations of gang sexual violence contained in the 2018 victim’s statement “are profoundly disturbing,” as is emerging evidence “around the allegations of a vicious sexual assault in 2003 … a full range of physical and sexual abuse. You, as the stewards of our national sport, were responsible during these periods, and your organizations are responsible for putting an end to the abuses that we are seeing.”

Perhaps it comes down to this: Do enough Canadians trust those same leaders who have overseen or commissioned the coverups and hush payments, and who allowed the most disturbing and abhorrent elements of Canadian junior-hockey he-man culture to continue for decades, even generations, believe they’re the ones who should author the appropriate, lasting fixes — as these very leaders are arguing and intending?

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If the Liberal cabinet — composed of Prime Minister Justin Trudeau and his top ministers, especially Minister of Justice and Attorney General of Canada David Lametti — believes the answer is no, then probably there ought to be a federal inquiry launched, ASAP.

It’s essentially the cabinet’s decision to make.

“I’m in no position to pass judgment on that decision,” Armstrong said. “But if (they proceed then) whoever they’d appoint as commissioner, or commissioners, hopefully would move promptly.”

John Kryk now writes a weekly newsletter on NFL matters. Content is exclusive to that platform. You can have it automatically dropped into your email inbox on Wednesdays simply by signing up — for free — at https://torontosun.com/newsletters/

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