ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-117-00

DATE: 2014-01-17

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RENE PAUL EMILE LABELLE

Defendant

Gerard Laarhuis, for the Crown

J. Eccelstone, for the Defendant

HEARD: January 13 – 16, 2013

RAY, J

Introduction

[1] The defendant faces three counts of sexual assault, and sexual touching, (ss 271, 153 (1) (a) and (b)) arising out of an interaction that occurred between the defendant and the complainant in the period July 7, 2003, to December 1, 2004. The defendant was a parish priest and was at the material time a chaplain at the high school in Kingston attended by the complainant (J). J knew the defendant as the chaplain at the school but also knew him because of a previous family connection. During the summer after J had completed Grade 11 or Grade 12 –he couldn’t be sure, the defendant invited him to visit him at a rectory on Wolfe Island which is near Kingston. It is not disputed that J visited the defendant at Wolfe Island. It is disputed by the defendant that J stayed overnight. It was during the overnight that the alleged touching and/or sexual assault occurred.

Evidence

[2] The Crown led the evidence of J, F (J’s father) and P (J’s mother). It also introduced into evidence on consent statements from Archbishop O’Brien and Fr. Joe Lynch as to peripheral issues concerning the reporting by J, plus agreed facts. Recent photographs of the Wolfe Island area were also introduced.

[3] J is 26 years old. He said that whilst he was a high school student, he was academically very successful, active and successful in sports, and very involved with the student theatre program. He was also Head Boy, and school valedictorian. J was also very active with the religious program at the school and assisted the defendant at masses and other religious events at the school. He described his family as a very close family. His mother was a nurse and his father a teacher although never his teacher. They were a religious family and attended church functions and events regularly. The defendant was not part of those religious events since he was associated with a different parish.

[4] During the month of July following his completion of Grade 11 – or Grade 12, (2003 or 2004), more likely 2004, he said he visited the defendant at Wolfe Island. He said the defendant had spoken to him earlier in the spring, and then telephoned him sometime after the end of the school year to arrange a specific date. On the day in question, his father drove him to the ferry, and dropped him off. He took the 25 minute ferry ride, and then walked to the rectory where he was greeted by the defendant. They had lunch and then drove to Big Sandy Bay in the defendant’s pick-up to go swimming. This involved parking the truck and then walking through grassland and trees to the beach area which he described as very large. They walked to the end of the beach where there were few people. J said the defendant then took off his outer garments and was left wearing a very revealing ‘jock strap’ type bathing suit which barely covered his genitals with only a strap. He said he felt uncomfortable and embarrassed. He was encouraged by the defendant to go swimming, so he did. J was wearing bathing shorts, and then walked by himself for a while behind the beach area.

[5] During the walk together from the beach back to the truck, he said the defendant twice held his hand and twice brushed his hand against J’s. He said he felt very uncomfortable and let the defendant’s hand go as soon as he could.

[6] J said they returned to the rectory, and had supper. At approximately 7 pm, J was shown to his room which he described as having a window on one side of the bed and a closet on the other side. He said there were priestly vestments in the closet. At bed time, he said the defendant told him a story about the haunted rectory; and that a former priest had reputedly been seen in the halls from time to time in his vestments.

[7] J said that he did not sleep well and found himself in and out of sleep. Whilst in a half sleep, he said the defendant came into his room wearing a purple vestment, sat on the bottom side of the bed, rolled the bed clothes down, and began massaging his penis. He said that the defendant then took J’s hand and placed it over his own penis with the defendant’s hand over it and began massaging his own penis. He said the defendant then turned away, finished masturbating himself and he heard his panting, grunting, and heavy breathing suggesting that he had had an orgasm.

[8] Nothing was said the following morning over breakfast. J then walked to the ferry to take the ferry back to Kingston, and was met by his father. He did not say anything to the defendant again about the incident and did not tell anyone else for about ten years.

[9] After his first semester at the University of Toronto, J said he began experiencing depression, an eating disorder, and became involved with drugs. So much so that he left university at the beginning of the second semester. He said he had begun to experience suicidal ideation, and finally was admitted to the psychiatric ward of a hospital. He said he attributes these emotional issues to the incident with the defendant but “can’t say for sure”.

[10] Finally just after New Year’s, 2012, he told his friend Claire about the incident with the defendant. He gave her no details. He said that the incident with the defendant had become all encompassing. He felt overwhelmed, and couldn’t seem to move on. She told him that being in a professional position herself, she felt obliged to report this information. J said he prepared a type written note to be given to Fr. Joe Lynch of the archdiocese informing him of the incident. It included the word ‘rape’. The concern he had was that the defendant might endanger other students. Specifically, he said he had a brother at the same high school. After he typed the note, he printed it on his father’s printer at which time his father became aware for the first time. He said he gave no particulars to his father other than those contained in the note. In fact there are two versions of the note, one saying that he was 15 at the time and the other saying he was 16. He said that after his father saw the first note, he told J he thought it was when he was 15. After discussion, he changed the note to read “15” instead of “16”. The following day, January 24, 2012, he met with Fr. Lynch along with Claire and gave him the note. He said he did not go to the police because his purpose was only to protect other students, and he didn’t want to start court proceedings. Several days later he was contacted by the police and he gave them a statement.

[11] J’s father, F said that he remembered dropping J off at the ferry on a Saturday for J’s visit to Wolfe Island. He said that either he or his wife picked J up the following morning. He said it was clear in his mind that it was a Saturday.

[12] F, now a retired teacher, described the family as very religious and very close. He spoke in glowing terms of J’s athletic, academic, social and theatrical accomplishments. He said that J had a 94% average in Grade 12 and was awarded a scholarship to U of T. He described J’s onset of depression and his withdrawal from university. He said that when J returned home and was under treatment for some four months, he was very fragile. The first notice he had of the incident was on January 23, 2012 when he saw the note drafted by J. J gave F no other details other than that the incident occurred at Wolfe Island. He said his only concern about whether the incident occurred when J was 15 or 16, was that he believed if the incident had occurred when J was 15, then the CAS should be notified. He said he had that discussion with J, but J was insistent that he intended to report the incident to the archdiocese not the CAS or police. F said he drove J to meet with Fr. Lynch the following morning , but did not attend the meeting.

[13] P is J’s mother. She described her very close relationship with J which included intimate discussions of what she described as affairs of the heart. She said this changed during the fall of 2004, and he began to be more distant, tended to be confrontational, and rebellious. He began to question his catholic upbringing and seemed angry that she couldn’t provide him with answers. She also saw subtle signs in the fall of 2004 of an eating disorder which later manifested itself. He began to be very conscious of food labels along with fat content, and began to lose weight. P described this as an abrupt change in stark contrast to his temperament and personality previously. Previously, he had been active and busy with his school activities, and easy to get along with. He was an impressive young man with his many accomplishments while at high school, academically, musically, athletically, and having been voted head boy and valedictorian, that showed the student body was equally impressed.

[14] Lots of friends would come over to the house. This changed as he became impatient and less tolerant. She saw that he was becoming emaciated, grey and pale. She and F took J to Toronto in August, 2006, to start his university term, and returned to Toronto to spend his birthday with him September 24. P said that the physical change in her son was startling. She saw a huge transformation. J was pale and anorexic; and his teeth seemed to be hanging. He seemed even more distant from her; and had become confrontational and belligerent. After that, she found her efforts to talk to J were rebuffed and she found that she was walking on eggshells around him. Otherwise, he would get angry, go into a rant, and sometimes leave.

[15] J left university at the end of his first semester and underwent psychiatric and medical treatment. Part of the treatment involved his treatment at a facility in Guelph. P recalled driving to pick him up to bring him back to Kingston on one occasion. He had asked that they drop off another person in Toronto. J chose to stay in the back seat of the car after the other person was dropped off. P said that she looked in the rear view mirror and saw him crying. He was very distraught and was questioning his catholic upbringing. Finally she asked him if any person “in a position of authority hurt you?” He said – “Yes – but I will never tell you who”. She asked J if it had been anyone at his school. J refused to answer. She said it was a most difficult drive home. She said she was worried he might try to get out of the moving car.

[16] P also recalled an incident when J was at home with her other son and her. They were about to watch a movie and J was asked to pick a movie. The movie they began to watch was upsetting to P and to her other son. It was a very violent movie and portrayed women being tricked into prostitution. When P said that the movie was inappropriate and wanted to turn it off, J said “(my brother) needs to know about this because I didn’t know”.

[17] P spoke also of a funeral for a close friend of J in 2005. The defendant spoke at the funeral which was held at the basilica because of the enormous number of people in attendance. The close friend had also been a valedictorian. She commented that she found it inappropriate and unacceptable at the friend’s funeral that the defendant referred to J during the eulogy. She saw that J was upset also at the reference to him.

[18] P said she had no memory of the events leading up to J’s Wolfe Island visit, although she remembered him going. She recalled that after he returned, she asked as was her custom, if he had had a good time, and he didn’t answer. She said that at the time she found that unusual.

[19] She knew nothing of the allegation concerning the defendant. F had told her that J didn’t want her to know. She first learned of the allegation after January 2012.

[20] An agreed statement of fact, a statement from Archbishop O’Brien, and Kevin Dorey, all introduced as evidence include the following: Archbishop O’Brien telephoned the defendant after J’s meeting with Fr. Lynch, told him of the allegation, and essentially suspended him from his parish duties pending conclusion of the allegations. The defendant told Archbishop O’Brien that he went swimming with J – but that’s all, and said nothing further. Mr. Dorey, an employee of the parks department that managed the Big Sandy Bay park said that he remembered the defendant coming to the beach area from time to time, and noted that he wore a “very tight fitting, very small Speedo that left very little to his imagination but it covered [his] genitals”. Vestments are usually owned by the parish and that was the case here. Vestments were there at the rectory on Wolfe Island when the defendant arrived there on July 7, 2004.

[21] The defendant gave evidence. He is 64 years of age. He said that he had known the family (F, P, another relative etc.) for a very long time. He had become chaplain in 1994 at the high school which involved Wednesday to Fridays during which he conducted a mass, visitations, and counselling. On July 7, 2004, he took up his post as pastor at the Wolfe Island parish. He knew J at the high school and knew him to be an exceptionally gifted student. He agreed that J stood apart from all other students, that he was moral, wholesome, kind, gentle, and mature “beyond his years”. He agreed that J was athletic, academically inclined, a talented musician, and would be the pride of any parent. He spent more time with J than with any other student, and agreed that he had seen J grow from a boy into a man. He found him to be popular and easy to be with. He agreed that J lit up his heart.

[22] In the spring of 2004, he said he told J of his impending appointment, and invited him to visit him at Wolfe Island to go swimming. J accepted, and sometime in July, the defendant telephoned him. J came a day or two later. He said part of the reason for the visit was to see if J might be interested in the priesthood, and the other reason was purely social. The defendant said the visit was a weekday not because he remembered, but by deduction that he would not have likely invited him on a weekend. He said that J arrived early afternoon after lunch and after a ten minute tour of the rectory – but not the church – he and J got into his pick-up to drive to Big Sandy Bay. They walked from the parking lot at the park to the two kilometre long beach – a ten to fifteen minute walk- and then walked to the farther end of the beach. There were other people there but not many. The defendant denied it was intentional that he sought out a private part of the beach some distance from the access point. He was wearing walking shorts over his bathing suit, and after they put their towels on the sand, he took off his walking shorts, and went swimming in his bathing suit. He said that J had gone in swimming before him, and as he entered the water, J jumped on him to push him under the water. He said he found it aggressive and made him feel uncomfortable. After swimming, he returned to the beach, and walked behind the beach to some shrubs to change into what he described as a speedo for sunbathing. J was still in the water. He said he didn’t think it was inappropriate to wear the speedo in front of J, although he said he asked J if he was ok with his speedo. The defendant agreed that taking a 16 year old boy to a beach as he had done was contrary to what he had been taught as a priest. But he denied that wearing the speedo and drawing J’s attention to it was an attempt to gauge J’s sexual interest. They remained on the beach for some two and a half hours, and dozed in the sun. The defendant said that J woke him up and said – ‘father, we have to get going to catch the ferry’. The defendant changed from his speedo into his walking shorts. They walked back to the truck. He denied holding J’s hand or trying to hold his hand during the walk back. They got back to the rectory about 4.30 to 5 pm, and the defendant went to a bedroom to change his shirt so that he would look presentable if he saw any parishioners during the walk to the ferry with J. He said he gave another bedroom and bathroom to J so he could change. The defendant said that when he came into the kitchen he thought he saw J on the telephone, and assumed that he had called for someone to pick him up in Kingston at the ferry terminal. He said that he then walked with J down to the ferry. At some point he said he had told J a story about the rectory having been haunted by a deceased priest.

[23] The defendant denied that J had stayed overnight at the rectory, denied that he had touched him sexually and denied that he had masturbated in front of J. He said he was unaware of any animosity between J’s family and himself.

[24] The defendant admitted that he had never invited any other student to visit him for swimming, and admitted that inviting J without checking with his parents first was contrary to the rules. He agreed that the Speedo left nothing to the imagination, and that it would have been most embarrassing for J to have been seen lying on a beach beside a priest wearing a speedo. The defendant agreed that if at the time, J had spoken to anyone of a homosexual incident that it would have been explosive, and would have fundamentally changed his relationship with his family, teachers, and students. And a relationship with a priest would have been even worse. He agreed that it would have been herculean for any person to carry that burden.

[25] The defendant said he had heard that J had started to go off the rails after the 2004 summer, but agreed that he had made no enquiries of J’s brothers who were at the school, or his father who he knew as a teacher about how he was doing. He said that students frequently “drop off” in the later years of high school so he didn’t notice that he did not see J much after the summer of 2004. He agreed that at the friend’s funeral the following year that his reference to J during the eulogy could have been to reach out to J because he had become estranged from J. He agreed that, he “might have been” thinking about J at the time of the funeral, but denied that it was an apology of sorts.

Analysis

[26] I must not approach the evidence of the defendant and the complainant to determine which I believe. Not only would that wrongly put the onus on the defendant to prove a negative, but it would have the effect of relieving the Crown of the burden of proof of establishing beyond a reasonable doubt the facts on which it relies. In keeping with the principles enunciated in W(D), I must first determine, after considering the defendant’s evidence, whether I accept his evidence or whether I am left with a reasonable doubt.

[27] I found a lack of candour from the defendant. For example, I do not accept his evidence that he had never thought about his bathing apparel as being inappropriate when alone with a 16 year old boy on a deserted beach. The defendant had over ten years of experience with adolescents in a high school setting, and would have known clearly the proper boundaries. I don’t accept that he didn’t think about calling J’s parents to first seek their approval of J coming to visit him. Again, in a school atmosphere permissions of that nature are fundamental to those in authority such as the defendant. The defendant’s explanation that ‘part’ of the reason for his invitation was to discuss a career in the priesthood does not stand up under scrutiny. If only part was intended for a discussion of the priesthood, what was the other part for? Did he want to develop a friendship? – Or worse? He implied that he just wanted to be with J. That could have happened in a restaurant or park in Kingston. In fact any discussions, including the priesthood, could and should have taken place elsewhere. He admitted that in inviting J as he had done was contrary to what he had been taught. He offered no explanation for breaching these fundamental principles, and seemed grudging in his acceptance these were rules he should have followed. He used “probably”, and “could be”, to show his grudging acceptance. I don’t accept that the defendant’s conduct should be overlooked as a simple breach of rules or that he didn’t turn his mind to it.

[28] I find that wearing what he called a Speedo, what J described as a pocket with a strap, and the park employee as “leaving nothing to the imagination” was intended to be provocative and was intended to gauge J’s sexual response. It had nothing to do with the priesthood and nothing to do with a friendship. The defendant admitted asking J if he was uncomfortable with his Speedo. What did he expect a 16 year old to say? In submissions, I was asked to accept that J did not say anything to the defendant, and therefore I should disbelieve J’s evidence that he felt uncomfortable. This was a 16 year old being asked by a priest. He would quite properly have assumed the priest knew better. I find that the defendant’s real intention was to draw J’s attention to his attire to further his intent to gauge J’s sexual response. I find that the defendant’s denial that he had held J’s hand as they walked back inconsistent with the purpose of the visit. I don’t accept that I should disbelieve J because of which hand it was alleged the defendant was holding. Neither was entirely clear in their evidence which side J was walking on at the time. Holding J’s hand, I and I so find, was a further effort to measure J’s response to a sexual encounter.

[29] I do not accept the defendant’s evidence that the entire visit lasted some three hours and that J did not stay overnight. It makes no sense. Little time was spent talking about the priesthood, and no time was spent taking J on a tour of the church on Wolfe Island. That would have logically been part of a discussion about the priesthood, not lying on a beach and snoozing in inappropriate beach attire. Finally, the defendant’s explanation as to why he had little contact with J after the summer of 2004, and specifically made no enquiries of J after he had heard of his difficulties has no merit. He clearly thought a lot of J, and admitted as much. To imply that after the summer of 2004, he simply ignored J’s “drop off” because that is what adolescents do is unbelievable; and yet he didn’t forget J because he inappropriately mentioned him in a eulogy for another student a year later.

[30] I do not accept the defendant’s evidence, and it does not leave me with a reasonable doubt.

[31] Having found that the defendant’s evidence does not leave me with a reasonable doubt I must consider whether on the whole of the evidence, I am left with a reasonable doubt.

[32] I accept F’s evidence that he dropped J off at the Wolfe Island ferry, and that he or P picked J up the following day. I accept P’s evidence that she didn’t remember who picked J up from the ferry, but that it was the following day. Neither were questioned or challenged on this evidence. I don’t accept the submission that merely because a great deal of time had elapsed that I should consider their evidence unreliable.

[33] I accept J’s evidence, and I so find that while he was lying in bed at the rectory on Wolfe Island the evening of his visit, the defendant came into his room, sat on the side of the bed, pulled down the bedcovers and stroked J’s penis; that he then took J’s hand, placed it on the defendant’s penis and then with his hand on top masturbated himself. I find that the defendant then turned away and masturbated himself to orgasm in the presence of J. I accept that J was ‘frozen’ and unable to say anything at the time or after the incident; and was an unwilling participant. I don’t accept the submission that I should draw an adverse inference from J’s failure to report the incident immediately to his family or authorities, and similarly I do not accept the submission that I should draw an adverse inference from J’s failure to verbally reject the defendant’s advances either during the walk from the beach or that evening in beach. That would be an error of law. He was 16 at the time and dealing with a priest - someone in authority whom he respected. J was not questioned closely or challenged concerning the overnight events.

[34] I find that J’s use of the word ‘rape’ in the note that he gave to Fr. Lynch reflected the violence he felt from the assault by the defendant, even though in evidence he conceded the word might not have been accurate.

[35] I further accept the evidence of P that during a car ride home with J from Guelph whilst he was being treated for addictions and depression that J told P that he had been hurt by someone in authority. I find that that person was the defendant. I further find that, at all material times, the defendant was a person in authority and in a position of trust which he abused.

Conclusion

[36] Mr. Labelle, stand up please.

[37] Mr. Labelle, I find I am not left with a reasonable doubt. I find you guilty beyond a reasonable doubt on all counts

[38] I find as follows:

Count #1, guilty.

Count #2, guilty.

Count #3, guilty.

[39] We will adjourn to arrange a date for sentencing.

Honourable Justice Timothy Ray

Released: January 17, 2014

COURT FILE NO.: 13-117-00

DATE: 2014-01-17

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

RENE PAUL EMILE LABELLE

REASONS FOR JUDGMENT

Honourable Justice Timothy Ray

Released: January 17, 2014