DATE: 20011206 DOCKET:C35236
COURT OF APPEAL FOR ONTARIO
CHARRON, SHARPE AND SIMMONS JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Brian H. Greenspan and Seth P. Weinstein for the appellant
Respondent
- and -
THOMAS HENRY O’DELL
Howard Leibovich for the respondent
Appellant
Heard: September 28, 2001
On appeal from the conviction by Justice R. P. Boissonneault dated July 4, 2000
SIMMONS J.A.:
[1] The appellant appeals from convictions entered on July 4, 2000 by Boissonneault J. on charges of gross indecency and indecent assault.
[2] The convictions arise from events that occurred in Lively, Ontario between September 1, 1981 and December 31, 1986. The male complainant testified that the appellant, a Catholic priest, sexually abused him repeatedly over a four to five year period. Credibility and the reliability of recovered memories were significant issues at the trial.
[3] The complainant explained that he had blocked the events from his conscious memory and that it was not until he was in his twenties that he recognized what had occurred. The Crown adduced expert evidence to explain the memory process in human beings and delayed recall.
[4] The appellant contends that the trial judge misapprehended the expert evidence and also placed undue weight on it, by using it to explain significant inconsistencies in the complainant’s evidence. Further, he submits that the trial judge erred in accepting the complainant’s testimony given the numerous inconsistencies and improbabilities in his evidence. Finally, he submits that the trial judge applied differing standards in assessing the credibility of the complainant and the appellant, and therefore improperly converted the trial into a credibility contest.
[5] For the reasons set out below, I would dismiss the appeal.
Overview
[6] The complainant described two significant incidents that formed the basis of the convictions. In one incident, the appellant sodomized him with a crucifix while the complainant lay on a leather couch in the priest’s quarters at the church. In the other incident, the appellant fondled the complainant and forced him to perform fellatio while the complainant lay on an altar inside the church.
[7] The complainant said he met the appellant in the spring of 1981, while in grade five. He recalled the appellant as instrumental in persuading him to transfer to a Catholic school, where he commenced grade six in September 1981, by saying to get to heaven the complainant would have to convert to Catholicism. The complainant also described a reddish or port wine birthmark resembling Newfoundland that he had observed on the complainant’s lower right abdomen during the assaults.
[8] Independent evidence called at trial confirmed that the appellant was not transferred to Lively until September 1981 and that the appellant does not have a birthmark on his lower right abdomen. The inaccuracy of the complainant’s testimony with respect to these two matters forms the basis of the first ground of appeal.
[9] The complainant first disclosed his allegations to the police in May 1998. Although he always had a sense of what had gone on, he never allowed himself to think about it. It was not until his twenties that he could actually admit that these things did happen to him, that they were real. Prior to this time, he would not have been able to describe what happened. He testified that he did not complain because of shame, family difficulties and his unwillingness to deal with these experiences.
[10] The Crown called Dr. Richard Berry to give expert evidence concerning the memory process in human beings and delayed recall. Dr. Berry testified that, generally, information is stored in an explicit memory system. The individual is consciously aware of it and it is available to him for recall. Memory is subject to change and decay with the passage of time. While the central theme of an incident or core memory tends to remain intact, peripheral memories may be modified by intervening events. So, for example, while one would retain the memory of going on a camping trip, the colour of the canoe or the kind of tent may be lost, or change in recounting over time.
[11] Dr. Berry further testified that information that overwhelms an individual may, however, result in dissociative amnesia with the information stored in an implicit memory system, where it is not readily available. Recovery of that memory may occur either as a result of a situation that parallels the original traumatic incident or the presence of cues, such as smells, that are similar to the original incident. The onset of memory may begin with a vague feeling that things are wrong. Memory generally returns over an extended period of time, often in a fragmented form that is usually out of sequence, so that memory recovery may never be complete.
[12] The trial judge admitted similar fact evidence indicating the appellant pleaded guilty to three counts of gross indecency involving two victims on January 9, 1992. The incidents occurred between 1981 and 1988 and the victims were somewhat older than the complainant had been when they met the appellant. The similar fact convictions involved the appellant acting as spiritual adviser to the victims and unusual behaviour in which a pulley system was attached to the victim’s genitals.
The Trial Judge’s Reasons
[13] On convicting the appellant, the trial judge said he believed the complainant and disbelieved the appellant. He also commented:
Dr. Berry acknowledged that memory malfunction is not completely understood and is still under debate. He stated the memory in question can be stored in a disassociated state and return in a fragmented form coming back in bits and pieces. Amnesia, he stated, is fairly prevalent for cases of trauma…
He testified that recall, in such cases, begins with vague awareness. In cases of sexual assault, problems occur with depression, or foreboding, rather than flashbacks. A feeling of uneasiness and guilt sometimes brings about the search for verification followed by discovery causing the individual to ignore the memory, or set it aside. When recall occurs it is often disjointed and out of sequence. This is especially in cases of sexual assault over a period of time.
Events are hard to differentiate and categorize. Dr. Berry then went on to say that recovered memory is not significantly different than continuous memory in reliability.
I find this last statement difficult to reconcile with his previous comments relating to disjointed and fragmented memory and to efforts to ignore the memory, or that the memory may never be, never be complete.
I conclude that, truthfulness aside, Dr. Berry’s previous evidence indicates memory retrieval can be such that it may not be as accurate as normal memory due to the fashion it comes back with its fragmented non sequential and incomplete characteristics.
…The impact of Dr. Berry’s evidence is also to be assessed with the credibility of the complainant on the whole of his testimony. I accept that due to the time lapse between the alleged events and this trial I cannot expect that any memory of the events in its details will be totally accurate. Discrepancies are to be expected in the complainant’s evidence. In any event, between his initial complaint and this trial, it is a matter of weight as to what I attribute to the relevance of these discrepancies. I do find however, that [the complainant’s] recollections, lack of recollection, suppression of memory, symptoms of unease, sleep disturbances as evidenced by the testimony of his mother, and himself, and indeed general discrepancies in particular are consistent with the general content of Dr. Berry’s testimony. Dr. Berry’s general comments as to memory function following trauma are consistent with [the complainant’s] evidence as to his recollection of events and personal reactions and feelings and I accept both their evidence in this regard. [emphasis added]
I find that the weight, or the probative value, of the similar fact evidence is of assistance in arriving at the ultimate resolution of this case. I further find that the evidence of the complainant is believable and any discrepancies therein, including the discrepancy between [the appellant’s] official arrival to Pius X Lively in September of 1981, and [the complainant’s] assertion that his first contact with [the appellant] was in the Spring of 1981, are as a result, or partly as a result, of an imperfect retrieval of memory resulting from traumatic amnesia followed by an element of denial on the part of the victim, as well as acute embarrassment in revealing his participation in grotesque sexual acts with the accused. [emphasis added]
I found Father O’Dell’s testimony weak in that in many instances, when confronted with a question by the Crown, which clearly, for someone with a normal memory, would have prompted a yes or no reply. His reply was “I don’t recall”.
On all of the evidence, including the similar fact evidence, I find that the charges have been proven by the crown beyond a reasonable doubt. I believe the evidence of [the complainant] as to the acts alleged and I accept Dr. Berry’s evidence as to what can generally happen to memory subsequent to [a] traumatic event. I find his evidence consistent with [the complainant’s] difficulties in recall of details. I accept [the complainant’s mother’s] corroborative evidence. I do not believe the accused’s denials. I find that the accused, on all the evidence, is guilty beyond a reasonable doubt of both counts as charged. [emphasis added]
Grounds of Appeal
[14] The appellant says the trial judge erred in the following respects:
i) by placing undue weight on and misapprehending Dr. Berry’s evidence of delayed recall in resolving two glaring contradictions: first, that the appellant was not in Lively at the time the complainant alleged he was abused and second, that the appellant does not have a birthmark as described by the complainant;
ii) by concluding the complainant was to be believed despite the numerous inconsistencies and improbabilities in his evidence; and
iii) by applying different standards to the assessment of the credibility of the appellant and of the complainant thereby treating the appellant’s trial as a credibility contest.
Analysis
i) Did the trial judge err by placing undue weight on the expert evidence to resolve two glaring contradictions in the evidence?
[15] The appellant says the complainant’s memories of abuse are anchored by two significant details. First, the complainant’s recollection of the appellant as the person who persuaded him to switch to a Catholic school, even though he was not Catholic, an event the complainant identified as the chronological tie to the commencement of abuse. Second, the complainant’s recollection of an unusually shaped “port red wine” birthmark on the abuser’s abdomen, a detail of significance to the identification of the perpetrator.
[16] The appellant submits that the trial judge erred by placing undue emphasis on Dr. Berry’s evidence to resolve these issues of credibility. Furthermore, the appellant says the trial judge misapprehended Dr. Berry’s evidence when he discounted the clear error in the complainant’s evidence in relation to the first anchor on the basis of “an imperfect retrieval of memory resulting from traumatic amnesia.” The appellant submits that while Dr. Berry stated that memories stored in an implicit memory system may return in a fragmented form, he posited that the information stored in this disassociated state is recalled with a high degree of accuracy and is relatively impervious to change and did not opine that details within the implicit memory system could return in an inconsistent or contradictory form.
[17] Further, it is submitted that the trial judge improperly used Dr. Berry’s evidence as being implicitly corroborative of the complainant’s credibility, by the extent to which he relied on it to resolve issues of credibility in the case.
[18] Finally, it is submitted that the trial judge either misapprehended, or failed to consider relevant evidence, by failing to refer, in his reasons, to the evidence demonstrating that the appellant does not have a birthmark. The appellant submits that this evidence raised far more than a minor discrepancy in the complainant’s evidence and amounted to a material contradiction of a core allegation.
[19] I cannot agree that the trial judge misused or misapprehended the expert evidence or that he ignored the evidence to which the appellant referred.
[20] Key portions of Dr. Berry’s evidence include the following:
If you have someone who is involved in an experience which, or something happens which for them emotionally can overwhelm them, … [t]hat kind of information may get stored in what’s referred to as the implicit memory system [^1]
In an implicit memory system … [t]he information could be there, but they may not be aware of the events and not able to access that or retrieve it … Now, I guess, one of the points that you’re raising here is the issue of rehearsal. That is, how often does a person think about an event, and that’s part of this pattern of changing, information changing for an individual that is not immutable, it’s not like this video recording. A person has an experience, they may store some information, but that information is subject to modification according to the point where the event occurs and the point of recall and it can be modified by intervening events. It is not as though everything changes dramatically, but it may be modified by, if you are a child, there is some kind of experience that you had with your family, perhaps it was a camping trip, and that camping trip is then talked about by yourself or with family members on later occasions. That tends to rehearse, tends to refresh the memory. And there may be bits and pieces that get modified in the re-telling that get incorporated into. So that aspects of the memory may change, but the central core tends to … remain intact. [^2]
…But there is definitely fairly convincing evidence to indicate individuals can have traumatic kinds of experiences for which they appear to have no awareness for a lengthy period of time and later can recount aspects of that. They may later recount the whole event. [^3]
Now the explicit memory system as I say will register the conscious available information. Implicit when you have traumatic amnesia – the theoretical model and the empirical data to support that indicates that there is bio-chemical change that occurs. And that information that goes into the implicit memory system appears to be relatively impervious to change while it’s stored in this dissociated state. [^4]
It comes back as fragmented usually in fragmented form. And as I say, it may come back not in terms of a complete picture, it’s not there. It often doesn’t make sense, and it’s usually out of sequence, out of order. So you just get a bit of this and a bit of that, and often it’s disjointed and disconnected and it’s very fragmented, and it doesn’t tend to make much sense for the individual. May not be able to put it together in terms of a whole account. That kind of gathering the information often takes place over a period of time. So the memory recovery process can be something that can be quite protracted and may in some instances never be complete. That a person may end up with what we would call fragmented memory … [^5]
[21] While it clearly would have been preferable for the trial judge to explain his reasoning process more explicitly in stating: “discrepancies [in the complainant’s evidence] … are as a result, or partly as a result, of an imperfect retrieval of memory resulting from traumatic amnesia”, in my view, this conclusion is available based on Dr. Berry’s evidence about the nature of recovered memory.
[22] The trial judge made specific reference to Dr. Berry’s evidence that memory recall could occur with “fragmented non sequential and incomplete characteristics”. It was open to him to conclude that while the complainant’s core memories of the abuse and the abuser were reliable and credible, the complainant had erroneously linked those memories with other events and personal characteristics. I see nothing inconsistent between that conclusion, and Dr. Berry’s statement that “information that goes into the implicit memory system appears to be relatively impervious to change while stored in this dissociated state”. Dr. Berry’s evidence concerning recovered memories makes it clear that, whatever the nature of the memory retained in the implicit memory system, it will not necessarily be recalled in a manner that is complete or that can be distinguished chronologically from other events.
[23] Further, I am not persuaded that the trial judge used the conclusions he drew from Dr. Berry’s evidence improperly, in order to corroborate the complainant’s evidence. It was necessary that the trial judge refer to Dr. Berry’s evidence to discount the potentially significant negative inferences that would otherwise arise from the discrepancies. In ultimately accepting the complainant’s evidence however, the trial judge relied on other evidence, including evidence from the complainant’s mother and similar fact evidence, which he found supported the complainant’s account.
[24] Although the trial judge did not specifically refer to the clear error in the complainant’s evidence relating to the birthmark in speaking about discrepancies, I am not persuaded that his failure to do so amounts to reversible error. The trial judge referred to the complainant’s evidence of the existence of the birthmark in the first part of his reasons when he summarized the evidence. The independent evidence confirming that the appellant does not have a birthmark was a significant piece of evidence emphasized by defence counsel in closing submissions. The trial judge framed his conclusion by reference to “discrepancies”, and recited the specific example of the date of the appellant’s arrival in Lively. Although it would clearly have been preferable for the trial judge to have referred specifically to the two major discrepancies arising from the complainant’s evidence, his use of the term “discrepancies” makes it clear that he was alive to the existence of more than one.
ii) Did the trial judge err by concluding the complainant was to be believed in light of the numerous inconsistencies and improbabilities in his evidence?
[25] The appellant submits that the following inconsistencies and improbabilities are neither incidental or collateral, and that the trial judge erred in failing to conclude they cast doubt on the complainant’s reliability and credibility:
i) the complainant told Dr. Berry that the appellant was always nude but testified that he always wore a long black or navy blue shirt;
ii) the complainant never told police he was sodomized with a crucifix;
iii) the complainant had never mentioned he felt the feet of Jesus hitting his anus prior to trial;
iv) the complainant had never mentioned prior to trial that he had confronted the appellant in 1987;
v) the complainant alleged that one of the incidents occurred on the altar in the church but could not recall the presence of relics and linens on the altar nor of an altar stone; independent evidence confirmed the likely presence of these items; and
vi) the complainant stated that although he was not Catholic, his teacher permitted him to participate in confession; independent evidence suggested it was unlikely this would have occurred.
[26] The complainant provided explanations in his evidence for all of the noted inconsistencies set out in items i) through iv). It was open to the trial judge to accept those explanations, and not discount the complainant’s evidence in any way.
[27] As for the improbabilities noted in items v) and vi), these were matters for the trial judge to assess. Having reviewed them, I am unable to say they rendered his acceptance of the complainant’s testimony unreasonable.
iii) Did the trial judge err by applying different standards in assessing the credibility of the complainant and the appellant, thereby converting the trial into a credibility contest?
[28] The appellant submits that in assessing the reliability and credibility of the evidence, the trial judge held the appellant to a higher standard than the complainant, and thereby impermissibly shifted the burden of proof. He says that the trial judge excused inconsistencies and contradictions in the complainant’s evidence as being the result of an imperfect memory but disbelieved the accused when he could not recall innocuous information that was approximately twenty years old.
[29] The appellant relies in particular on the following passage from the trial judge’s reasons:
I did not find the accused’s testimony in many instances credible. His attempt to cast a shadow over the complainant’s testimony on surrounding peripheral matters such as the question of the episode of confession in the school gym and [the complainant’s mother’s] testimony. The assertion of certainty of discovery of any action which occurred on the altar begs a different conclusion because of the time of day alleged when the lights were out and it was at night. I believe the evidence of [the complainant’s mother] relating to her son’s bicycle being often at the church. I believe her testimony and [the complainant’s] testimony as opposed to the accused[’s] that the complainant spent a great deal of time with the accused at the relevant times. I believe [the complainant’s mother’s] testimony that her son was lonely and without many friends at relevant times. I conclude that he was vulnerable, impressionable, submissive and suggestive. I believe [the complainant’s mother] when she testified [the appellant] visited her home to introduce himself. I do not know how he could fail to recollect this event.
The appellant submits that he did not attempt in his testimony to “cast a shadow over the complainant’s testimony on surrounding peripheral matters” but merely responded to allegations of the complainant.
[30] The appellant also submits that the trial judge’s finding that his evidence was “weak” based on his answers “I don’t recall” is unreasonable. The appellant says he gave that answer to only three questions posed in cross-examination with respect to matters of an inconsequential nature, dating back a number of years.
[31] In sum, the appellant submits that the only rational explanation for him being disbelieved is the fact that the complainant was believed.
[32] I disagree. Read fairly, one can construe the appellant’s testimony in part as an effort to discredit the complainant. Though not a necessary finding, it was a finding that was available to the trial judge.
[33] I count a total of five areas of cross-examination in which the appellant asserted a lack of recollection: meeting the appellant’s mother, visiting the complainant’s neighbour’s household, using the expression “have chalice will travel”, visiting the Sudbury area between 1978 and 1981, and knowing the identity of his paperboy. Although he may not have used the specific phrase “I don’t recall” on every occasion, the appellant’s assertions of lack of recollection were frequent, and must be viewed in the context of a similar lack of recall on occasion during examination-in-chief. It was open to the trial judge to assess the areas in which the appellant professed a lack of recollection, and to conclude that it rendered his testimony “weak”. Having reviewed the whole of the appellant’s evidence, I am unable to conclude that the trial judge reversed the burden of proof or rejected the appellant’s testimony on an impermissible basis.
Disposition
[34] I would dismiss the appeal for the reasons set out above.
Released: December 6, 2001 “LC”
“Janet Simmons J.A.”
“I agree Louise Charron J.A.”
“I agree Robert J. Sharpe J.A.”
[^1]: Transcript, p. 149 [^2]: Transcript, p. 150 [^3]: Transcript, p. 152 [^4]: Transcript, p. 152-3 [^5]: Transcript, p. 160.