Canadian Heritage Committee on July 26th, 2022

[Anthony Housefather, Liberal, Mount Royal, QC]

Okay. I appreciate your clarifying that. At the last hearing, Hockey Canada was very confusing about how many players participated, so thank you for clarifying that it was 10 and the reasons the others did not.

You are a very experienced counsel. After having identified those 10 witnesses, would it be true to say that you have a very good idea of who the eight men are who are alleged to have been in that room? I am not asking you get into whether or not anything happened, whether it was true or not, but you would have a clear idea of who the people were, would you not?

[Danielle Robitaille]

Madam Chair, this is an area that I have to be very careful in answering. As I indicated, the goal of our mandate is to search for the truth. I do not want to provide an answer in the course of these proceedings that could potentially taint the evidence from other witnesses who I have yet to hear from, nor do I want to provide an answer that taints the evidence that will be provided to the London Police Service, which has reopened its investigation, or the NHL and NHLPA's ongoing investigation. So I do have to decline to answer that question with the following caveat: My investigation is going well. As I indicated, I have the complainant's statement now, and, as I indicated in my opening statement, I am well equipped to continue this investigation.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you.

I think what was confusing to many people was that, when Hockey Canada asserted at the last meeting that it did not know the identify of the eight individuals, it seemed highly surprising to many of us in light of the interviews that were conducted.

Let me ask a different question. One of the other things that I think many were confused about was why players were not required to co-operate at the time and why no sanctions were imposed on those who don't. On June 20, Mr. Smith testified that, “On the advice of our third party investigator, we were not able to impose sanctions.” That's presumably on those who did not participate.“They advised that we lacked due process for them.”

Given that Mr. Smith himself spoke to that and clearly waived privilege on that issue, would you kindly elaborate as to that answer, whether you spoke to them about that and advised that you could not require them to participate or not allow them to be sanctioned because of due process issue?

[Danielle Robitaille]

There are two aspects to this answer, one of which is covered by solicitor-client privilege or the claim of solicitor-client privilege, but I take your point regarding what was testified to at the prior occasion. I'm not here to give out a legal opinion on the validity of that claim of privilege.

There were discussions around that issue. I'm not authorized to disclose them to this committee, absent direction from Madam Chair and the committee, so there's part of the answer that I cannot provide unless ordered to.

In relation to the second part of the answer, what I would say and what I think is important for the committee to understand, is that the issue of refusals had not crystalized at any point in my investigation. That is because of the conclusion that I drew, along with my law partner Alex Smith and supported by my law associates at the firm, that I should not interview the remaining players, absent the statement from the complainant. I needed her version of events to push forward in my investigation.

Once the criminal proceedings concluded, I focused my efforts on speaking with the complainant's counsel and attempting to facilitate obtaining that statement so that I would be equipped to move forward in my investigation. As I indicated in my opening statement, ultimately by September of 2020, after 18 months of those efforts not arriving to the place I had hoped they would, I closed the investigation without prejudice to reopening it at a later date—and, as I indicated, we are here now.

[The Chair, Liberal, Hedy Fry]

Thank you. I think that's enough time.

We have overreached our time, guys, but there you go.

I would like to ask everyone to be concise in their answers so that we can get in as many questions and answers as we possibly can. Thank you.

I will now go to the Bloc Québécois.

Mr. Lemire, you have five minutes.

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

Thank you, Madam Chair.

Ms. Robitaille, thank you very much for being with us.

Obviously, we would have liked to have been able to obtain the preliminary report, but we understand the circumstances.

I would like to come back to the basics. Hockey Canada told the committee that they did not hire a lawyer on June 19, 2018, and that it was only when the summary of the allegations was provided to them that lawyers were hired.

So Glen McCurdie contacted you on June 19, 2022. What time was it?

[Danielle Robitaille]

Madam Chair, I don't have a note of the precise time that I was contacted. My recollection is that it was in the morning that I had an initial conversation with Mr. McCurdie, and then subsequently a broader conference call with some executive leaders at Hockey Canada.

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

That's fine. It still gives me a good sense of the timing.

What specifically is the mandate you've been given?

[Danielle Robitaille]

The mandate at that time, on the 19th, was to give some preliminary advice regarding what to do. I've disclosed, and Hockey Canada is not asserting solicitor-client privilege over, the fact that my first piece of advice was that London Police Service needed to be contacted.

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

Did a lawyer also contact you to provide you with this mandate? Investigators generally cannot incriminate their clients.

Was the mandate sent to you by Hockey Canada or did a lawyer deal with you?

[Danielle Robitaille]

That's an interesting question. I was contacted by Glen McCurdie directly. If it assists the panel, I can say that it is not unusual that an investigator is contacted directly from an organization, though it's also not unusual that you're contacted by outside counsel. That happens as well.

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

I understand that your mandate has evolved. Were you given instructions by a lawyer along the way?

[Danielle Robitaille]

What I can say is that after our discussions with Hockey Canada on the 19th, we were provided the mandate of conducting an independent investigation.

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

Did your mandate also refer to the nature of the actions that would have to be taken if Hockey Canada was found to be responsible for the situation in question? Did you have a mandate to do that?

[Danielle Robitaille]

I can indicate that, as I mentioned, the mandate was a twin mandate. The first was to conduct the investigation in relation to alleged breaches of the high performance code of conduct. The second was to report on any policy or systemic issues that we noted in the course of our investigation in order to assist the organization in moving forward.

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

So the mandate isn't limited to simply finding out whether the alleged facts are true. It's also a matter of determining Hockey Canada's responsibility under the circumstances.

Is that correct?

[Danielle Robitaille]

Correct.

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

Great.

Who paid for the investigation by Henein Hutchison LLP?

[Danielle Robitaille]

Hockey Canada.

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

From what funds? Do you know?

[Danielle Robitaille]

I have no idea.

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

What are the limits of your investigation?

[Danielle Robitaille]

The way my firm conducts independent investigations is that there are no limits. The objective is to be at arm's length and free of bias. That means having a mandate that is explicit in its independence from the source organization. We decide which witnesses to interview, what questions to ask and what inferences to draw. We will not take, nor would I ever take, direction from an organization in relation to that sort of mandate.

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

In the past four years, since you were given the first draft of this mandate, have you reported to various bodies?

First, were you asked to report to the Hockey Canada board of directors?

[Danielle Robitaille]

I don't think this is covered by solicitor-client privilege. I hope the committee appreciates the difficult circumstances I find myself in. I can say that I've never appeared before the board of Hockey Canada, and nor has anyone in my firm.