DANGEROUS GAME: THE BANNING AND UNBANNING OF ‘THE BOYS OF ST. VINCENT’
By Gerry Flahive
(A shorter version of this story appeared in the Globe and Mail on December 4/19: https://www.theglobeandmail.com/arts/television/article-looking-back-at-the-cbcs-the-boys-of-st-vincent/)
“A person who mounts a production about a case pending before the courts is playing a dangerous game.” — — Justice Charles Gonthier, December 1994 Supreme Court of Canada decision
The day the most controversial TV drama in Canadian history was banned by a judge — 48 hours before its scheduled world premiere — its director, the NFB’s John N. Smith, and CBC executive Ivan Fecan used code names (‘Falcon’ and ‘Peregrine’) and a backdoor entrance to avoid word of their presence getting out to journalists waiting on the steps of Osgoode Hall courthouse in Toronto. As it turned out, their ruse didn’t matter, as a confounding ruling from Justice Gotlib that afternoon meant no journalists would be allowed to report the ban anyway.
THE BOYS OF ST. VINCENT, a ground-breaking dramatic mini-series about sexual abuse at a Catholic orphanage, was blocked in November 1992 from its national broadcast on CBC at the request of lawyers for four Christian Brothers charged with similar crimes.
Having made a film that sought to reveal a human tragedy and the cover-up that followed, Smith had to face the fact that the ban was itself now subject to a publication ban. Not only would people not see the film, they wouldn’t even know why it wasn’t being shown.
Thus began a two-year journey for the film and its makers, its participants and its audiences — — and the victims it sought to honour. A journey that involved eight courtrooms, Hollywood offers for its director, a never-to-be-repeated large-scale collaboration between the country’s two national public storytelling organizations, the shaping of a cinematic approach to television storytelling that pre-dated the Netflix revolution by two decades, and a fundamental debate about freedom of expression in Canada. It would lead all the way to the Supreme Court of Canada, and ultimately change this country’s legal landscape forever.
For Tim Southam, President of the Directors Guild of Canada and director of major dramas for U.S network television and Netflix like HOUSE and LOST IN SPACE, “THE BOYS OF ST. VINCENT was remarkably ahead of the curve, and a tribute to John’s artistic courage, because at the time, culturally, the idea of doing something for TV was seen as essentially abandoning a higher form of art — cinema — in order to do a lower art form. We can’t take that kind of audacity for granted, but we can take for granted the fact now that TV is now a platform for the highest form of filmmaking. ”
But before the film could have a full and lasting cultural impact, it was held up at the gate by the courts — and no one knew on that day how long that might last.
The dry legal arguments — — and they got drier and more procedural as the case moved from the lower court to the Ontario Court of Appeal and then to the Supreme Court — — were sometimes peppered with bizarre comments from judges about the supposed inability of jurors to discern the difference between fact and fiction. Wouldn’t a film like THE BOYS OF ST. VINCENT make it impossible for anyone else in the Catholic hierarchy charged with these kinds of crimes to ever get a fair trial? None of the judges actually saw THE BOYS OF ST. VINCENT, but some argued that it could have an almost hypnotic power to influence jurors.
This story, and the film itself, really began in another courtroom in 1988, long before charges were laid in Ontario against the four Christian Brothers. Smith, in Newfoundland working on an a low-budget drama, WELCOME TO CANADA, about refugees from Sri Lanka landing in a small coastal village, got caught up in the horrifying news coverage about the Mt. Cashel Orphanage scandal, which uncovered an unprecedented scale of sexual abuse of young boys in the care of Christian Brothers over decades.
Smith sat in on a trial of one of the accused priests — who had appeared in WELCOME TO CANADA — and it sparked what became THE BOYS OF ST. VINCENT. “I think my worst moment was in a courtroom seeing one of the victims, now a young man, being torn apart by a defense lawyer — truly horrible”. For his NFB colleague, producer and co-writer Sam Grana, the shock came when they learned why a young man who had been pumping gas for the production’s vehicles in the small town of Brigus South wasn’t there one day: a victim of abuse, he had taken his own life.
It was a time in the NFB’s history when its budgets and internal resources — staff filmmakers, elaborate post-production facilities, and a much larger staff than it has today — allowed the development of low-budget dramas that drew on the organization’s documentary filmmaking strengths by casting non-actors to play characters like themselves, in largely-improvised features. The alternative drama films included Giles Walker’s 90 DAYS, Cynthia Scott’s THE COMPANY OF STRANGERS, and Smith’s own SITTING IN LIMBO and TRAIN OF DREAMS.
At the CBC, under Fecan’s direction and that of the late Jim Burt, Creative Head of Movies and Mini-Series for CBC Television, the network was embracing the torn-from-the-headlines docudrama, such as LOVE AND HATE, DEADLY BETRAYAL: THE BRUCE CURTIS STORY and CONSPIRACY OF SILENCE. It was a cultural moment — and this being Canada, that could mean an intra-governmental moment — that the creative teams in both the NFB and the CBC seized.
The scale and complexity of THE BOYS OF ST. VINCENT — — two 2-hour episodes, spanning 15 years, with more than 40 characters — required a more formal approach to the production process, that drew from the strengths of both organizations and elements from docudrama (timely and vital subject matter) and alternative drama (improvisation and a documentary ethic) to create a truly cinematic film that was unflinching and artistic .
The NFB partnered with an independent company, Montreal’s Les Productions Télé-Action Inc., to expand the budget, and approached the CBC to seek a national broadcast window. Co-written by Newfoundland writer Des Walsh, Smith, and Sam Grana, the film would by cast young boys with no acting experience alongside experienced professionals like Henry Czerny (whose terrifying depiction of the vicious and tortured Brother Lavin in the film launched him into Hollywood’s sphere, with roles in such films as MISSION IMPOSSIBLE).
Extensive preparatory work was done to ensure that the boys and their parents fully understood the grave nature of the story. The filmmakers worked with Dereck O’Brien, a former resident of Mt. Cashel, experts in child sexual abuse, and a psychotherapist (who was on set) to create an environment that was accurate to the dark realities of the issue, and to create a safe and collaborative production process.
After three years of work on the film by Smith and company, the first people to see the film were sexual abuse victims, now adult men. The tears and anger flowed on December 1, just days before the scheduled TV premiere, at a private screening in Ottawa for dozens of men who had been abused at Catholic orphanage. The film triggered powerful emotions — some directed at Prime Minister Brian Mulroney, who just happened to be leaving the building, far across the lobby outside the External Affairs building’s theatre, generating several ‘fuck you Brian!’ shouts, to which he replied with an uncomprehending wave.
Smith blames himself for the court troubles that were about to follow, because one of the lawyers representing other victims had invited his friend — — the lawyer representing the Brothers. That lawyer quickly came to the conclusion that the film could have a volatile impact on the minds of jurors.
On December 4, amidst rapturous advance publicity for the film — — some of which would end up being used courtroom evidence of the film’s supposed danger — — the hearing to ban the film began.
[Full disclosure: I was in the courtroom that day, as the NFB’s Senior Communications Manager, and later was a producer at the NFB until 2014].
The proceedings did not go well for the CBC and the NFB. It might not have helped that the Brothers’ lawyers, in the written submission seeking the injunction, referred to the boys in the film as “victims”, the quotation marks perhaps raising doubt about the veracity of these kinds of accusations.
Though the judge would later state in her written ruling that “juries are not stupid”, in the courtroom she quickly agreed with the Brothers’ lawyer about the potentially prejudicial impact the film might have on juries assessing guilt, and said in her ruling that “the harm that would be caused by the showing of this particular film….would be such that the possibility of impartial jury selection virtually anywhere in Canada would be seriously compromised.”
This was the first taste of an argument that would play out for the next two years. At the center of it was a kind of awe about the power of filmmaking. One’s views on social issues and on the norms and extremes of human behaviour are shaped by decades of consumption of media, of conversations and observations, and education. Could a jury’s opinions be so shifted by one viewing of a single film? Or even by the knowledge of its existence?
The result? The next day, one of the most simultaneously cryptic and meaningful headlines in Globe and Mail history appeared on its front page: “BANNED”, followed by a very short notice indicating that “somewhere in Canada yesterday, a group requested a court ban on the publication/broadcast of a certain work for certain reasons.” That certain film was the subject on the cover of the Globe’s Broadcast Week magazine, so all the copies had to be pulled from papers across Canada.
With the broadcast premiere scheduled only 48 hours from this moment, what could be done? There were huge legal principles at stake.
Ivan Fecan tells me that “on that day, I learned about how easily our rights can be taken away. I clearly remember sitting there hearing ‘the ban on the ban’, and thinking to myself ‘I can’t believe we’re in Canada’. This feels like something out of a totalitarian state. I don’t think any of us thought this was a possibility. “
The CBC and the NFB filed for an appeal, which was heard the next day in a rare Saturday session by the Ontario Court of Appeal panel of three justices.
Some of the advance reviews of the film were cited by the applicants for the injunction, as they underlined the film’s power and seeming resemblance to similar events. The late Greg Quill of the Toronto Star wrote that “it contains scenes that will frighten and sicken many people, featuring random brutality meted out by supposedly Christian overseers of dispossessed and helpless youngsters, scenes focusing on graphic sexual exploitation, and scenes that implicated the Catholic bureaucracy and government officials in a hideous cover-up”.
Although the appeal succeeded in lifting the publication ban, and allowing the broadcast to go ahead everywhere in Canada except in Ontario and Montreal (to avoid reaching potential jurors in the remaining trials), there remained a suspicion among the judges of the film’s intent, with the court seemingly offended at the way lawyers were depicted: “THE BOYS OF ST. VINCENT paralleled the facts upon which the charges were brought against the respondents, showing the complainants as truthful, the accused as liars, and the defence lawyers as insensitive and cruel.”
Lawyer Ian Binnie, who represented the NFB at the appeal and went on to argue on behalf of both the NFB and the CBC at the Supreme Court appeal (where he would ultimately end up as a justice from 1998–2011) told me recently that “judges were too quick in the 90s, to say, ‘well, clearly this is going to blow the mind of the jurors. So we’ll ban it’. The whole point of the appeal was to create that space for artistic freedom, and filmmaking. And I don’t think you have to demonstrate that the film, would have no effect on a jury”. Binnie had argued that judges could simply challenge prospective jurors to determine if they had seen the film, and then exclude them from a trial if need be.
Even with a truncated reach due to the partial broadcast ban, the mini-series attracted more than 2 million viewers, and the CBC and NFB, anticipating a powerful personal impact on some viewers, partnered with Kids Help Phone, due to the “dearth of services to adult male survivors of abuse.” Immediately after the broadcast on both nights, their counsellors spoke to over 300 callers. While most were men who had been abused by caregivers in institutions as children, some were spouses seeking psychiatric help for their husbands, as well as some female survivors, including indigenous women who had been abused in residential schools. THE BOYS OF ST. VINCENT had prompted some viewers to disclose for the first time that they had been abused.
Unseen by millions of now-rabidly interested Canadians, the films was, in a pre-internet era, unavailable — — unless, that is, you rented a VHS copy from the NFB. Even if people in Toronto and Montreal couldn’t see it, people in New York and Hollywood could. Word spread quickly in the film industry about this controversial and powerful film. Selected for the Telluride Film Festival, BOYS garnered a theatrical run in NYC, praise from Pauline Kael and TAXI DRIVER screenwriter Paul Schrader, and even Steven Spielberg, who gushed to Vince Vaughan (slated to work with Smith on a drama) “oh geez, you’re working with the guy who made THE BOYS OF ST. VINCENT”.
Smith landed a job as director of DANGEROUS MINDS, with Michelle Pfeiffer starring in a story of an inner-city school teacher. But Hollywood wasn’t for him: “I made a couple of films in Hollywood. I was really committed to making Canadian stories. Making American stuff — — I don’t want to do that.” Instead, he returned to Canada to direct television stories, adapting books by Guy Vanderhaeghe and Maggie Siggins, and bringing ‘the greatest Canadian’, Tommy Douglas, back to a new generation of viewers.
By the time the case was reviewed by the Supreme Court in December 1994, THE BOYS OF ST. VINCENT had been seen, cumulatively, in English and French, by almost 10 million people. But what would stop this from happening again, to another film? The hope was that the Supreme Court would establish a legal principle more that restored and protected free expression. And it did.
In the words of Justice Beverley McLachlin (who became Chief Justice in 2000), “What is required is that the risk of an unfair trial be evaluated after taking full account of the general importance of the free dissemination of ideas and after considering measures which might offset or avoid the feared prejudice. What must be guarded against is the facile assumption that if there is any risk of prejudice to a fair trial, however speculative, the ban should be ordered. The courts are the guardians not only of the right to a fair trial but of freedom of expression. Both must be given the most serious consideration.”
Daniel Henry, the CBC’s Senior Legal Counsel at the time, says the Supreme Court decision in THE BOYS OF ST. VINCENT case “changed the equation, and recognized the free expression is also a fundamental right, that needs to be balanced with the right to a fair trial. And in the years since, it has become established as the bedrock principle on which all publication restrictions are weighed. It’s a fundamental touchstone for the importance of free expression in a democratic society.”
But the Court’s ruling wasn’t unanimous, and one dissenter, Justice Gonthier raised the by-now familiar spectre of films as something that could be “undue, unnecessary, and excessive temptations” to susceptible jurors. The impact of docudramas, in particular, in his view, derive “from the power of omniscience afforded to the viewer. Television is in many ways more powerful than print. Few would argue that vivid images are often more firmly etched in memory than even the best prose.”
By this point, the time for ‘alternative dramas’ had come to end. NFB staff reductions and budget cuts meant that THE BOYS OF ST. VINCENT would be the last major collaboration of its kind between the NFB and the CBC. Both Ivan Fecan and Smith had moved on within a year of the TV premiere. Facing huge legal fees, Smith resigned to earn more money in the private sector, two days before the film was shown again on CBC, this time to the entire country, despite an attempt by another accused Christian Brother to have it blocked yet again.
A quarter of a century later, Is it possible to have a ‘TV event’ like BOYS anymore, one that captures the nation’s attention?
According to Sally Catto, General Manager, Programming, CBC Television, “CBC remains committed to shining a light on important and contentious social issues in our country” citing the network’s documentary work in this regard. “We’ve taken a different approach with our overall programming strategy; while we still have mini-series on our schedule, our focus is now on more literary adaptations including BOOK OF NEGROES and ALIAS GRACE.”
John Doyle, the Globe’s television critic (whose review of THE BOYS OF ST. VINCENT appeared in that ‘banned’ issue of Broadcast Week in 1992) still thinks of the film “as one of the landmarks. At that point, we weren’t yet talking about a golden age of television, or a ‘peak TV’ era. That is, the sort of canon of prestige cable dramas that started roughly around the time of THE SOPRANOS and SIX FEET UNDER. THE BOYS OF ST. VINCENT is a drama at that level of quality. So we were part of that arena, but it then it seemed to sort of die out in Canada, presumably because the CBC lost interest.”
He can’t imagine the CBC summoning something like it into being today. “There is a general nervousness at CBC under the current regime, which I think is rather weak in in terms of having a history of making truly great, powerful television. They’re not interested in drama that could be considered controversial or confrontational.”
I asked Ivan Fecan the same question. “Could THE BOYS OF ST. VINCENT be done today? only by a public broadcaster and an institution like the NFB. That’s the point of having public broadcasting, where you could do productions like this. I don’t see any reason why it couldn’t be done today, it just needs the will to do it.”
What are the prospects for complex, socially-engaged work for the next generation of Canadian filmmakers working in television?
Dawn Wilkinson, a rising star most recently directing episodes of EMPIRE and the Netflix series LOCKE & KEY, doesn’t approach her work with any real distinction between prime-time network TV and the streaming world. “Canadian drama series and streaming are finding ways of going together. I’ve written a script that is a modern film noir set against a turf war in Jane and Finch, which I’m developing into a limited series. But it will also have a life as a feature script. I’m optimistic about the potential to tell ambitious stories that have social issues at the core. In drama you can explore the gray areas. You know, when you l you look at a character and their motivation, you can look at the you can experience a social issue and it’s from the inside.”
THE BOYS OF ST. VINCENT carries a somewhat larger social, cultural and legal legacy than most Canadian films. Like many, it’s ‘out there’ on various platforms, but not as present as it should be in public consciousness. Ivan Fecan recalls attending the Toronto International Film Festival premiere of SPOTLIGHT, the 2015 Hollywood feature about journalists uncovering sexual abuse in the Catholic Church in Boston. When it was introduced as “ground-breaking” “I heard them say that, and when they started running the film, I got up and walked out.” The ground was broken by BOYS 23 years earlier.
The Supreme Court ruling triggered by the banning of THE BOYS OF ST. VINCENT has a name: Dagenais v. Canadian Broadcasting Corp. It’s been endlessly cited in court cases ever since, and is usually just referred to as ‘Dagenais’. The name comes from the original application for an injunction on behalf of the accused Christian Brother Lucien Dagenais, whose name appears first in the list of four. The Ottawa Citizen described his crimes in this way: “Brother Joseph, a.k.a. Lucien Dagenais…was given a five-year sentence after being found guilty of seven counts of indecent assault, six counts of assault causing bodily harm and two counts of buggery. Throughout the court proceedings, Dagenais showed no remorse and maintained his innocence.” Perhaps we can say that through a form of cultural justice, THE BOYS OF ST. VINCENT has transformed the meaning of that name, erasing the identity of that person, the name now, instead, to be forever associated with freedom of expression in Canada.
Gerry Flahive is a writer in Toronto.
