WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

Court of Appeal for Ontario

Date: 20230223 Docket: C69222

Fairburn A.C.J.O., Doherty and Pardu JJ.A.

BETWEEN

His Majesty the King Respondent

and

M.P. Appellant

Counsel: Grzegorz Dorsz, for the appellant David Friesen, for the respondent

Heard: February 15, 2023

On appeal from the convictions entered by Justice J. Sproat of the Superior Court of Justice on January 30, 2020.

Reasons for Decision

[1] The appellant was convicted of sexual assault, and touching for a sexual purpose. The trial judge imposed a sentence of 21 months in jail to be followed by 3 years probation. The usual ancillary orders were made.

[2] The appellant was a priest. He was 62-years old at the time of the relevant events. He has since retired from the priesthood.

[3] The appellant appealed his convictions. We dismissed the appeal at the end of oral argument with reasons to follow.

[4] The complainant, a 15-year-old girl, and her parents visited the appellant at his home seeking spiritual guidance. According to the complainant and her parents, the appellant and her parents agreed that the complainant would stay with the appellant for a few days after her parents returned home so that she might explore with the appellant the possibility that she had a religious vocation. The complainant alleged that while she was staying at the appellant’s home, he sexually assaulted her on various occasions. The complainant reported the assaults to her family about three months later.

[5] The appellant testified and denied sexually assaulting the complainant. He agreed that the complainant, with her parents’ consent, had stayed overnight with him after her parents returned home. The plan was for the appellant and complainant to drive to the complainant’s home the next day.

[6] The appellant testified that during the evening, the complainant came into his bedroom and climbed into bed with him. He admitted sleeping with the complainant and touching her back, but insisted there was no sexual contact. The appellant acknowledged that having the complainant in his home without her parents being present, and allowing the complainant into his bed, violated church rules governing the conduct of priests.

[7] The trial judge’s verdicts turned largely on his assessment of the credibility and reliability of the evidence of the appellant and the complainant, as well as the meaning of certain text messages exchanged between the appellant and the complainant’s father about four months after the alleged assaults. The Crown maintained that the appellant’s text messages, particularly the first one, amounted to a confession by the appellant that he had sexually assaulted the complainant. The appellant testified that the text messages were not references to any sexual abuse, but rather an admission that he had violated church rules when he allowed the complainant to stay with him unchaperoned, and allowed her into his bed.

[8] The trial judge reviewed the evidence of the complainant and the appellant at some length. He found the complainant to be a credible and reliable witness. The trial judge, however, concluded the appellant was not a credible witness. The trial judge referred to different aspects of the appellant’s evidence, including the appellant’s evidence about the reason the complainant stayed with the appellant when her family returned home. The trial judge rejected the appellant’s explanation as incredible and described it as “a deliberate lie”. That finding was open to the trial judge, and understandably had a negative impact on the appellant’s overall credibility.

[9] The appellant submits that the trial judge’s assessment of the complainant’s evidence was tainted by his failure to consider conflicting evidence given by the Crown witnesses on an important matter. The complainant and her mother testified that she spent four nights with the appellant. The complainant’s father and the appellant testified the complainant spent two nights with the appellant. The appellant argues that unless the complainant was with the appellant for at least four nights, her description of the relevant events becomes implausible, if not impossible.

[10] The trial judge reviewed the evidence about the length of the complainant’s stay with the appellant. In the end, the trial judge concluded that he did not have to make any specific finding, beyond the finding that the complainant was with the appellant for “two or three nights”.

[11] We see no error in the trial judge’s approach to the conflicting evidence concerning the length of the complainant’s stay at the appellant’s home. The Crown was not required to prove every detail of the complainant’s evidence, and the trial judge was not required to resolve all factual issues. His finding that the complainant stayed with the appellant for “two or three nights” provided ample opportunity for the assaults alleged by the complainant to have occurred.

[12] In addition to his assessment of the reliability and credibility of the witnesses, the trial judge carefully reviewed the text messages exchanged between the appellant and the complainant’s father. In the first text message, the father wrote:

Just learned today that you abused my daughter during her stay at your place. She was crying. Depressed. You broke our trust. That’s why people leaving the church I’m very upset. I need your apology [and] you should ask God for forgiveness.

[13] The appellant responded two days later:

I am truly sorry for what happened to [the complainant]. I am willing to ask for forgiveness. Please keep it within your family. I’ll do anything to win your trust. I am going to see my S.P. director tomorrow. Please pray for me.

[14] In subsequent text messages over the next few days, the appellant indicated that he had spoken to his superior and told him that he had touched the complainant while they were praying. His superior advised him that was not abuse. In a subsequent text message, the appellant said:

I didn’t abuse her, just touched her inappropriately. But I am ready to pay in kind, perhaps financially as a penalty towards her education. I was reprimanded by the bishop, all my faculties have been taken away, I cannot even celebrate mass anymore in the diocese.

[15] The trial judge reviewed the text messages and described their contents as “highly inculpatory”. After reviewing the appellant’s explanations for the text messages, he said:

This does not make much sense to me. He was admitting to ‘abuse’ which in the circumstances he had to understand was an allegation of sexual abuse. It makes no sense to me he would apologize, effectively admitting the abuse, in order to calm the father.

[16] The trial judge’s conclusion that the content of the appellant’s text messages, particularly the first one, amounted to an admission by the appellant of sexual abuse is a finding of fact. The trial judge arrived at that finding after considering the competing interpretations of the text messages put before him, and the evidence of the complainant, which the trial judge had found credible and reliable. The appellant has provided no basis upon which this court should interfere with the trial judge’s finding as to the meaning of the text messages.

[17] The appellant further submits that he was not given a proper opportunity to respond to the Crown’s case. As we understand this argument, the appellant contends the Crown never specifically put to the appellant on cross-examination that the admissions in the text messages were admissions of sexual assault and not merely admissions of a breach of internal church rules governing the conduct of priests.

[18] We reject this argument. It was the position of the Crown throughout that the text messages constituted an admission by the appellant that he had sexually abused the complainant. The complainant had described the specific acts of sexual abuse. There is no suggestion the appellant did not have full disclosure of the Crown’s case. He had every opportunity to provide his explanation of the text messages. He did exactly that. Unfortunately for him, he was not believed.

[19] The appellant could not possibly have been under any misunderstanding as to the nature of the allegations made against him, and that it was the Crown’s position that his text messages amounted to an admission of the sexual assault alleged.

[20] The appellant also seeks to adduce fresh evidence on the appeal. Post-conviction, but prior to sentencing, the appellant underwent a series of cognitive tests. He asked the court to receive the results of those tests and a consultation report prepared by the supervising physician. According to the report filed, “the clinical picture is consistent with a mild severity mixed dementia”.

[21] The appellant submits that the dementia diagnosed post-conviction has a direct impact on the appellant’s ability to recall and recount the relevant events, and could have favourably impacted on a trial judge’s assessment of his credibility and reliability. The appellant contends that a new trial is necessary so that his dementia can be factored into a proper assessment of his evidence.

[22] The fresh evidence is not admissible. First, it lacks the requisite cogency. The appellant has offered no expert evidence as to the impact of his dementia on his testimony. Without that evidence, this court is in no position to determine how, if at all, the cognitive deficiencies identified in the proposed fresh evidence impacted on the appellant’s testimony. We note that a review of the transcript of his evidence from the trial does not suggest that he laboured under any inability to understand or answer questions.

[23] We also agree with the Crown that there is no explanation offered for the failure to adduce this evidence at trial. While due diligence is not a prerequisite to receiving fresh evidence on appeal, it is an important consideration. In any event, as the evidence was available prior to sentencing, the evidence should have been brought forward before the trial judge on a motion to reopen the trial: R. v. Khan, 2022 ONCA 698, at paras. 16-17.

[24] As indicated at the end of oral argument, the appeal is dismissed.

“Fairburn A.C.J.O.” “Doherty J.A.” “G. Pardu J.A.”