R. v. Bastien, 2016 ONSC 1166

COURT FILE NO.: CR-14-3130

DATE: 20160219

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

LINUS BASTIEN

Applicant

Jennifer Holmes, for the Crown

Patrick J. Ducharme, for the Applicant

HEARD: February 4, 2016

RESTRICTION on publication

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

ruling on application to quash committals

Thomas j.:

BACKGROUND

[1] The applicant, Linus Bastien, stands charged on a thirty-count indictment with offences of gross indecency, indecent assault, sexual assault and invitation to sexual touching. The charges relate to twelve male complainants between July 1963 and July 1989. Twenty-eight counts charge gross indecency and indecent assault and those counts are the focus of this application.

[2] At the material time, Mr. Bastien was a Roman Catholic priest and the male complainants were either altar boys, or their families had a close connection to the Roman Catholic Church in their community.

[3] The preliminary inquiry of this matter was heard by the Honourable Justice Marion on February 27, 28 and March 3, 2014. Mr. Bastien was committed to stand trial on all thirty counts.

[4] The offence of indecent assault on a male, then under s. 156 of the Criminal Code, was repealed on January 4, 1983. The offence of gross indecency, then under s. 157 of the Criminal Code, was repealed on January 1, 1988. The charges relate to allegations between 25 and 51 years ago.

THE APPLICATION

[5] The applicant contends that the gross indecency and indecent assault provisions in the Criminal Code between July 1, 1963 and July 1, 1975, did not provide an intelligible standard for judicial decision-making in terms of the behaviour captured by the offences, rendering them void under the doctrine of vagueness. He seeks a writ of certiorari to quash committal on the contention that his s. 7 and 11(d) rights under the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (Charter), were infringed and that additionally, there was no evidence which suggested the community standard of decency during the dates in question. He further requests a judicial stay of proceedings pursuant to s. 24(1) of the Charter.

THE DECISION OF THE PRELIMINARY INQUIRY JUDGE

[6] At the preliminary inquiry, applicant’s counsel raised the issue of vagueness and “a lack of evidence of an objective standard of what a Canadian citizen would think of at the time” (preliminary inquiry transcript p. 40) regarding the test for gross indecency. Counsel sought to avoid committal contending that the relevant offences were too vague to defend. Since a preliminary inquiry judge has no Charter jurisdiction, it is unclear how counsel hoped to achieve this relief at this stage.

[7] Marion J. said this at page 47 and 48 of the transcript of the preliminary inquiry:

Indecency is defined in the Oxford dictionary as “offending against recognized standards of decency.” Gross is defined as “flagrantly or conspicuously wrong”. I note from the facts in this case that the victims they were all young at the time, all occurrences were before they reached secondary school. The position of the offender was not only as a person in authority but with revered status. My conclusion would be that a jury properly instructed could convict as the conduct was a marked departure from decency, and I certainly view the evidence as sufficient to meet the test in United States and Shepherd. This argument is an argument that can be brought at trial.

Discussion of its definition evolved but it remained first throughout as a marked departure, which is in its essence “flagrant or conspicuous” to define “gross” as the courts initially dealt with it. The word “indecency” did not change. It simply was to offend the recognized standards of decency and when one considers the decision of the Court of Appeal in Quesnel “a marked departure from decent conduct expected of the average Canadian in the circumstances that existed” I am of the view that the test has been met at this preliminary hearing and commit the accused to a trial within assignment.

ANALYSIS

[8] The applicant seeks to apply Charter principles and relief to pre-Charter allegations. His counsel, Mr. Ducharme, argues that his client should have the benefit of Charter principles and jurisprudence since the trial itself is taking place in 2016. He suggests to do otherwise requires the applicant to participate in an unfair trial with an inability to make full answer and defence breaching his present day rights guaranteed by Charter s. 7 and 11(d). This follows, he argues, as a result of the vagueness of the terms “indecent” and “gross indecency”.

[9] For the purpose of my analysis, I see three issues:

(1) Does the Charter apply?

(2) No matter what the constitutional instrument, is the section void for “vagueness”?

(3) Should a Writ of Certiorari be granted?

Issue (1) – Does the Charter apply?

[10] It is clear that the law to be applied is the law, including the Constitution, that was in place at the time the offences are alleged to have occurred.

[11] Le Dain J. confirms that principle at para. 1 of R. v. Stevens, 1988 44 (SCC), [1988] 1 S.C.R. 1153:

I would dismiss the appeal on the ground that s. 7 of the Canadian Charter of Rights and Freedoms is not applicable to s. 146(1) of the Criminal Code because its application in this case would be a retrospective one. This Court has recently affirmed, in dismissing the appeal from the judgment of the Ontario Court of Appeal in R. v. James, 1988 79 (SCC), [1988] 1 S.C.R. 669, that the Charter cannot be given retrospective application. In James, the Court of Appeal held that s. 8 of the Charter could not be applied to seizures carried out before the Charter came into force and that in consequence, s. 24 of the Charter could not, at the trial which took place after the Charter came into force, be applied to exclude evidence obtained from such seizures. Tarnopolsky J.A., who delivered the judgment of the Court of Appeal, said that "one applies the law in force at the time when the act that is alleged to be in contravention of a Charter right or freedom occurs" and that "it is important that actions be determined by the law, including the Constitution, in effect at the time of the action": (1986), 1986 147 (ON CA), 27 C.C.C. (3d) 1, at pp. 21 and 25.

[12] As a result, the Bill of Rights is the quasi-constitutional document that must be applied to the allegations in question here.

[13] The Bill of Rights contained a declaration of rights and freedoms in s. 1 followed by the remedial provisions in s. 2 set out below:

Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe, or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared.

[14] Peter Hogg describes the limited application of the Bill as follows:

In Hogan v. The Queen (1975), Laskin J. described its status in these terms: “The Canadian Bill of Rights is a half-way house between a purely common law regime and a constitutional one; it may be aptly described as a constitutional instrument”. Despite this and other affirmations of the overriding effect of the Canadian Bill of Rights, Canadian Courts continued to be very reluctant to apply the Bill

The Supreme Court of Canada was much criticized for its “timid” approach to the Bill of Rights. In the 22 years that elapsed between the Bill’s enactment in 1960 and the Charter’s adoption in 1982, the Drybones case was the only one in which the Supreme Court of Canada held a statute to be inoperative for breach of the Bill. This cautious attitude stemmed in large part from the fact that the Bill was simply a statute, which “did not reflect a clear constitutional mandate to make judicial decisions having the effect of limiting or qualifying the traditional sovereignty of Parliament. A reinforcing factor was that the Bill contained no limiting provisions comparable to s. 1 of the Charter, so that the courts were inclined to avoid broad interpretations of the rights for fear that reasonable statutory limits on the rights would have to be struck down.

Peter W. Hogg, Constitutional Law of Canada, 5^th ed., Vol 2 (Toronto: Thomson Carswell, 2007) at pp 15-16, 19, 24 and 25.

[15] As mentioned above, R. v. Drybones, 1969 1 (SCC), [1970] S.C.R. 282 (Drybones), was the only time the Bill was applied to render a section of a federal statute inoperative. The Supreme Court of Canada in Drybones confirmed that the Bill of Rights was, on its highest application, capable of requiring that a specific provision be ruled inoperative. The respondent suggests here, and I agree, that a statutory provision can only be ruled void for vagueness by application of s. 7 of the Charter. There is no comparable section of the Bill of Rights to provide this relief. That application is unavailable due to the age of these allegations.

[16] The Bill of Rights has, however, been applied to the gross indecency and indecent assault provisions. In all cases, the courts confirmed the unavailability of Charter remedies as a result of the age of the allegations.

[17] In R. v. Stymiest (No. 2), [1993] B.C.J. No. 245 (B.C.C.A.), the court considered the allegation of an indecent assault by a male on another male and ruled that the legislation (s. 156) did not offend s. 1(b) (the equity rights provision) of the Bill of Rights.

[18] In R. v. E.V.J., [2004] B.C.J. No. 1988 (B.C.S.C.), the court considered an alleged act of gross indecency between an 8 to 12 year old and the accused who was between 16 and 20. The concern was an act of simulated intercourse. The application seeking relief under both the Bill and the Charter suggested that the legislation deprived the accused of the defences of consent and mistake of fact. The British Columbia Supreme Court upheld the provision under both pieces of legislation.

[19] In R. v. D.C., 2013 ONSC 6759, [2013] O.J. No. 5065 (SCJ), O’Marra J. found the charges of indecent assault and gross indecency did not offend the equality provisions of the Bill of Rights (s. 1(b)) in a case where the allegations were assaults on a 9 to 13 year old by his uncle.

[20] It is abundantly clear that any constitutional challenge to the gross indecency and indecent assault charges here must engage the provisions of the Bill of Rights.

Issue (2) – Are the gross indecency and indecent assault provisions (1963-1975) void for vagueness?

[21] I have determined that any challenge must involve the remedial provisions of the Bill of Rights. Considering that the Bill contains no analogous provision to s. 7 and recognizing the reaction of courts in the past to claims for remedial relief under the Bill of Rights, it is unclear that as a matter of law there is an available remedy. Nonetheless, this concern has been litigated before and I must consider the applicant’s argument that the nature of the offences affects his fair trial rights today.

[22] The Supreme Court of Canada considered the doctrine of vagueness in a Charter challenge to s. 32 of the Combines Investigation Act, R.S.C. 1970, c. C-23, in R. v. Nova Scotia Pharmaceutical Society, [1992] S.C.R. 606. The court’s definition of a vague provisions, for our purposes, can be found in paras. 63 and 71:

A vague provision does not provide an adequate basis for legal debate, that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria. It does not sufficiently delineate any area of risk, and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion. Such a provision is not intelligible, to use the terminology of previous decisions of this Court, and therefore it fails to give sufficient indications that could fuel a legal debate. It offers no grasp to the judiciary. …

The doctrine of vagueness can therefore be summed up in this proposition: a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate. This statement of the doctrine best conforms to the dictates of the rule of law in the modern State, and it reflects the prevailing argumentative, adversarial framework for the administration of justice.

[23] It seems clear that while “absolute precision in law exists rarely, if at all. The question is whether the legislation provided an intelligible standard according to which the judiciary must do its work.” (Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927 at p. 983.)

[24] Beyond the issue of the need for informed legal debate lies the concern that an individual must be able to ascertain, in advance, the elements of an offence:

This does not mean that an individual must know with certainty whether a particular course of conduct will ultimately result in a conviction of the crime that prohibits such conduct. What it does mean is that the essential elements of the crime must be ascertainable in advance. If an accused must wait “until a Court decides what the contours and parameters of the offence are then the accused is being treated unfairly and contrary to the principles of fundamental justice.

Individuals are nonetheless expected to refrain from conduct that tests the boundaries of criminal law lest they bear the consequences of the risk they have knowingly assumed.

(R. v. Levkovic, 2013 SCC 25, [2013] SCJ No. 25 at paras. 34-35 (Levkovic); and Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76 at para. 41.)

[25] For a court to conclude that a law fails for vagueness it must first consider: (i) prior judicial interpretations; (ii) legislative purpose; (iii) the subject matter and nature of the section; (iv) societal values; and (v) related legislative provisions. (Levkovic, paras. 47-49.)

[26] It seems timely to mention at this point that the two offences considered here were not repealed due to concerns about vagueness but rather to allow the sections to be replaced by language more conducive to Charter standards and more representative of gender equality (House of Commons Debates, 32nd Parliament, 1st Session, Vol. 17 (August 4, 1982) BILL C-127 second reading at p. 20039 (Hon. Jean Chretien). This recognition, for reasons previously discussed, does not assist the applicant.

[27] One reason to find a lack of vagueness lies in the ability to establish the elements of the offences.

The Elements of the Offences

[28] The elements of the offence of gross indecency have been judicially established as the accused engaging in a physical act with another person that, viewed objectively, is grossly indecent. The offence allows for the defence of lawful excuse which considers the location of commission, age of the parties and consent. (E.V.J., paras. 24 and 25.)

[29] Of great benefit to this analysis is the post-Charter case of R. v. LeBeau, 1988 3271 (ON CA), [1988] O.J. No. 51 (C.A.). The court applied Charter principles to the doctrine of vagueness as it related to the charge of gross indecency. The conduct considered amounted to a group of homosexual men taking over a public washroom in a park and using it as a meeting place for acts of fellatio. The court, at page 8 and 9, made the following comments in dismissing the constitutional challenge:

Further, the meaning of “an act of gross indecency” has been elaborated by Brooke J.A. for this court in R. v. Quesnel and Quesnel (1979), 1979 2883 (ON CA), 51 C.C.C. (2d) 270 at 280 as follows:

…[A]lthough the Code does not define the offence of gross indecency it may be defined as a marked departure from decent conduct expected of the average Canadian in the circumstances that existed. What is needed is a fair objective standard in relation to which the conduct can be tested. It is not to be a subjective approach where the result would be dependent upon and varying with the personal taste and predilections of the particular Judge or juryman who happens to be trying the case.

As we have noted, for conduct to amount to gross indecency it must, viewed objectively, be “a marked departure from decent conduct expected of the average Canadian in the circumstances that existed”. While this feature, of course, involves an element of imprecision in the definition of the offence, we do not think, on the facts of the cases before us, that it results in any failure of the law to give fair notice to the appellants that their conduct is prohibited.

[30] The offence of indecent assault requires a consideration of the concept of decency as it has been historically considered along with its companion concept of obscenity. In Labaye, 2005 SCC 80, [2005] 3 S.C.R. 728 at paras. 36 and 62, the court considered indecent conduct and found the Crown needed to establish conduct that caused harm or presented a significant risk of harm to society and that the harm was of a degree that it was incompatible with the proper functioning of society.

[31] In R. v. Swietlinski, 1980 53 (SCC), [1980] 2 S.C.R. 956 at page 9 and 10, McIntyre J. discussed the elements of the offence of indecent assault and provided an insight into how the offence had been viewed over time (providing assistance regarding the charges in issue):

The law has been settled that an indecent assault is an assault that is committed in circumstances of indecency, or as sometimes described, an assault with acts of indecency. What acts are indecent and what circumstances will have that character are questions of fact that will have to be decided in each case, but the determination of those questions will depend upon an objective view of the facts and circumstances in relation to the actual assault, and not upon the mental state of the accused. This view has been expressed in R. v. Resener [1968 817 (BC CA), [1968] 4 C.C.C. 129], in the British Columbia Court of Appeal, a case which reviewed various authorities on the subject, and which was referred to with approval by Pigeon J. in this Court in Leary v. The Queen [1977 2 (SCC), [1978] 1 S.C.R. 29.], at p. 57. This was, as well, the view expressed by Martin J.A. for the Ontario Court of Appeal. In dealing with this case, he said:

The definition of “indecent assault”, which has long been accepted in England, is an assault accompanied by circumstances of indecency on the part of the accused towards the person assaulted: see R. v. Leeson (1968), 52 Cr. App. 185 at p. 187.

In my view, the Canadian and the English law do not differ in this respect. In R. v. Louie Chong (1914), 1914 656 (ON CA), 23 C.C.C. 250, the Appellant seized hold of the complainant and offered her money for “an immoral purpose”. It was contended on behalf of the Appellant in that case, that an indecent assault is not committed unless the act constituting the assault is itself indecent in its nature; that all that the Appellant did was to take hold of the complainant, and the words used by him did not import indecency into the act. This Court, in affirming the conviction, held that an act which is ambiguous may be interpreted by the surrounding circumstances and the words used by the accused. Middleton, J., speaking for the Court, said at p. 251:—

“It is in each case a question of fact whether the thing which was done, in the circumstances in which it was done, was done indecently…”

and later:

In any event, the judgment of the Court of Appeal of British Columbia in R. v. Resener, supra, holding that a specific intent to assault indecently is not a necessary element of indecent assault was cited with approval by Pigeon J., delivering the majority judgment of the Supreme Court of Canada in Leary v. The Queen, 1977 2 (SCC), [1978] 1 S.C.R. 29, at p. 57, and we must now take the law in this respect to be settled.

The only intent required for indecent assault is the general or basic intent to do the act which, in the circumstances in which it was done, in fact, constitutes an indecent assault. I accept the submission of Mr. Ewart for the Crown, that if the Appellant removed the deceased’s dress against her will, that act was capable of being an indecent assault, irrespective of the Appellant’s purpose.

[32] The objective test for whether the act is indecent engages the community standards test which may involve the calling of evidence, but is not dependent on it. In R. v. Mara, 1997 363 (SCC), [1997] S.C.J. No. 29 at para. 35, Sopinka J. confirmed that the community standard of decency speaks to community in general, on a national scale, not just where the allegations took place, and must be consistently applied.

[33] In R. v. Resener, [1968] B.C.J. No. 113 (B.C.C.A.) and R. v. Chong, [1914] O.J. No. 108 (C.A.), the courts found the rubbing of a 14 year old’s vagina and breasts and the taking of a young girl and inviting her to engage in sex acts to both be indecent assaults.

[34] The vagueness argument is not dependent on the evidence available in this prosecution or the evidence called by the Crown at the preliminary inquiry. It is a stand-alone concept which is subject to constitutional scrutiny. The Charter is not available but neither are the sections so vague as to affect the fair trial rights of the accused. While the terms “decency” and “gross indecency” may be somewhat imprecise, the offences allow for legal discourse, in fact, there has been informed legal debate. Further, the offences are not so conceptually amorphous as to put a potential offender in peril.

[35] As to the argument that the vagueness of the offences affects the present day fair trial rights of the applicant, I am at a loss to understand the impact. As mentioned above, the complaints forming each count of the indictment are easy to ascertain. There is no stated concern regarding disclosure and the witnesses were produced at the preliminary inquiry for cross-examination. With the body of jurisprudence, touched on above, including the discussion of the community standards test, the applicant is capable of full answer and defence.

Issue 3 – Should a Writ of Certiorari be granted?

[36] In R. v. Jeffery, 2015 ONSC 7674, Pomerance J. summarized the general principles governing certiorari in four paragraphs. I see no reason here to do anything but transplant that concise overview:

It is well settled that the scope of review of a committal (or discharge) flowing from a preliminary inquiry is extremely narrow. In this context, review is strictly limited to errors of a jurisdictional nature. Errors of law (as distinct from errors of jurisdiction) are immune from challenge. The threshold for a finding of jurisdictional error is not easily met. As was observed by Laskin C.J.C. in Forsythe v. The Queen (1980), 53 C.C.C. (3d) 225 (S.C.C.), “the situations in which there can be a loss of jurisdiction in the course of a preliminary inquiry are few indeed.”

Jurisdictional error will arise where a preliminary inquiry justice commits an accused to stand trial in the absence of any evidence on an essential element of the offence. Where the issue is sufficiency of evidence, the determination of the preliminary inquiry justice “is entitled to the greatest deference.” R. v. Russell (2001), 2001 SCC 53, 157 C.C.C. (3d) 1 (S.C.C.). The test on review is whether there is some evidence upon which the committing justice could conclude that the test has been satisfied. So long as there is a scintilla of evidence on each element of the offence, the committal is jurisdictionally sound. The reviewing court is not empowered to substitute its own view for that of the committing justice.

Where there is direct evidence on each of the essential elements, the preliminary inquiry justice must commit. “It remains only for the jury to decide who it chooses to believe and what evidence it decides to accept or reject.” R. v. Charemski (1998), 1998 819 (SCC), 123 C.C.C. (3d) 225 (S.C.C.) at para. 22. Where the evidence is circumstantial, the justice must engage in some weighing of the evidence, but only to a very limited extent. As described in R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.) at para. 23:

The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

In other words, the preliminary inquiry is not the proper forum for weighing competing inferences or for choosing among them. Nor is the justice to consider whether there is a rational explanation for the evidence other than the guilt of the accused. The Crown’s case must be taken at its highest and considered as a whole. If the evidence is reasonably capable of supporting an inference of guilt, a committal must ensue (even if the evidence is also capable of supporting an inference of “non-guilt”). The “crucial distinction” was described by the Supreme Court of Canada in R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 (S.C.C.) at para. 91, “the judge does not draw determinate factual inferences, but rather, comes to a conclusion about the field of factual inferences that could reasonably be drawn from the evidence.”

[37] In the recent decision of R. v. Kamermans, 2016 ONCA 117, the court at para. 20 spoke again about the task of the preliminary inquiry judge in assessing inferences:

Whether an inference is easy, hard or difficult to draw is of no moment to a decision on committal. Provided the inferences advanced by the Crown are within the field of available inferences and provide evidence of each essential element of the offence, committal follows.

[38] This issue breaks down into three sub-issues:

(a) Are the reasons sufficient?

(b) Is there a need for expert evidence?

(c) Is there evidence sufficient to commit?

To some extent, issues (b) and (c) are related.

(a) Are the reasons sufficient?

[39] The applicant argues that the preliminary inquiry judge, in his brief reasons, swept all the charges into one bundle without reference to the evidence offered to support each charge. In doing so, it is argued there is no real decision-making. All allegations, minor to serious, were dealt with as one, without any evidence regarding the prevailing community standard 39 to 51 years ago. The applicant says it follows that there is an absence of evidence on each essential element amounting to jurisdictional error.

[40] The reasons for committal are admittedly brief. The reasons do not detail the specific allegations. I will shortly deal with a detailed review of the evidence. Suffice it to say that the preliminary inquiry judge was not required to provide more in this context and a failure to do so does not support the argument of jurisdictional error.

(b) Is there a need for expert evidence?

[41] The need for expert evidence of community standards as it relates to the objective test of the level of indecency has been judicially considered.

[42] In R. v. St. Pierre, [1974] O.J. No. 1898 (C.A.), the court considered an allegation of cunnilingus between a 30 year old accused and a 17 year old complainant. Dubin J. commented as follows at para. 30:

Attitudes relating to sexual behaviour are constantly changing. In determining whether the conduct of the accused was a very marked departure from decent conduct, it would have been of great assistance to the jury to have been apprised by an admittedly qualified expert as to sexual practices being carried on in this country, which are not regarded by many as abnormal or perverted. In the absence of such evidence the jury would be left to make the determination dependent solely on their own private views and their own experience.

[43] The court in St. Pierre did not suggest that expert evidence was necessary to establish an essential element nor even that it would be helpful in every case.

[44] In the more recent decision of R. v. LaPage, 2014 ONSC 5855, Molloy J. dismissed the charge of gross indecency regarding anal penetration between a 27 year old accused and a 15 year old complainant. Consent was established. Justice Molloy found it inappropriate for her to speculate on the public decency standards 44 years ago and that, in the case before her, expert evidence was essential.

[45] As part of the evidence here, the complainant C.B. testified that he was asked by his teacher to take something to Father Bastien at the church. When the task took 25 minutes, the teacher was upset and ordered him to the principal. C.B. told the teacher it was because the applicant was kissing him. When the teacher was incredulous approximately 10 students in the class started to chant “Father kiss me” … “Father hump me” … “Father pervert”.

[46] This evidence, while not providing a broad view of the community standard of decency at the time in question, certainly is direct evidence of how those children, at that time, felt about the applicant’s advances and their language provides their prospective on his level of decency.

[47] This sub-issue overlaps in part the content of the next section of these reasons regarding evidence on the elements of each offence.

(c) Is there evidence sufficient to commit?

[48] The reasons do not detail the evidence of the individual complainants. To best assess the applicant’s argument on sufficiency, I have reviewed the evidence and offer the chart set out below:

Counts

Complainant

Allegation

1 – 3

G.C.

G.C. to kneel on a chair with his underwear down where he was fondled. Accused rubbed his penis between his “butt cheeks”.

4 – 6

K.C.

Accused would hug and “hump” him by grinding his genitals into him. K.C. forced to masturbate accused until he ejaculated on K.C.

7 – 9

B.B.

Accused would put his hand down B.B.’s pants and fondle him.

10 – 11

R.L.

R.L. required to sit on accused’s lap while accused caressed his thighs. Accused laid on top of him on the floor and pushed his “privates” into him, “humping” him. Accused asked “does it feel good?”

12 – 14

D.B.

Accused touched D.B.’s penis, “balls”, his “package”. Hugged and kissed him on the lips and ground his genitals against D.B. “humping”.

15 – 16

(not counts in issue)

G.M.

Accused hugged him and kissed him on the lips and tried to force his tongue into G.M.’s mouth saying “the Lord loves you very much”.

17 – 19

D.B.

D.B. was hugged and kissed for long periods of time. Kissed on the side of his head and neck. Accused rubbed his hands down D.B.’s back and buttocks.

20

D.B. (2)

Accused hugged him cheek to cheek. D.B.(2) pushed against a wall with pressure from accused torso and deep breathing. D.B. (2)’s zipper undone. “Have you ever taken a shower with a man?”

21 – 22

C.B.

Accused breathing in his ear, hugged him cheek to cheek while grinding his pelvis into C.B. “penis to penis” but with his clothes on.

23-24

L.G.

Accused held L.G.’s buttocks and rubbed L.G.’s penis against his chest until L.G. ejaculated. While holding L.G. accused would himself masturbate.

25-26

S.A.

Accused would wrestle with S.A. and then put his hand down S.A.’s pants and fondle his penis.

27-30

A.F.

Accused grabbed A.F. and held him tightly. A.F. could feel his whiskers on his face. Accused kissed him all over his face on about three occasions.

[49] In the context of these allegations, in the relationship of parish priest and child, these charges do not offer the same concern as encountered in St. Pierre or LaPage. They do not demand expert evidence of community standards. The preliminary inquiry judge had direct evidence on each count of the contact between each complainant and the accused. The nature of these allegations require a certain weighing even with this direct evidence to assess if the contact was indecent or grossly indecent. His reasons articulate that he was alive to the age of each of the boys, the location of each allegation and the reverred status of the applicant. He came to the conclusion that a reasonable jury, properly instructed, could return a verdict of guilt. (The United States of America v. Shepphard, 1976 8 (SCC), [1977] 2 S.C.R. 1067.) He was entitled to do so. Some of the alleged contact could be viewed as significantly less offensive than others, but even if ultimately viewed as not making the gross indecency standard, that does not amount to jurisdictional error at this stage.

[50] It was argued by the respondent that applicant’s counsel conceded committal on the indecent assault counts and that that concession should limit any consideration of certiorari relief to the gross indecency counts only. Further, the respondent suggests if applicant’s counsel conceded indecency for some counts that must, with this lowered threshold, satisfy evidence for committal on the gross indecency counts as well.

[51] While the submissions on committal are suggestive of a concession on the indecent assault counts, I cannot find that counsel clearly did so. In any event, for the reasons mentioned above, I decline to entertain that argument. The evidence here was sufficient for the judge to commit on all counts.

STAY

[52] For the reasons set out above, I am content that the applicant can make full answer and defence and is capable of receiving a fair trial. There are no grounds to support a stay of proceeding, presuming s. 24(1) Charter relief is even available to the applicant.

CONCLUSION

[53] For the above reasons, all applications are dismissed, including those for constitutional relief, certiorari and a stay of proceedings. The applicant should be tried on all 30 counts on this indictment.

Original signed by Justice Bruce Thomas

Bruce Thomas

Justice

Released: February 19, 2016

CITATION: R. v. Bastien, 2016 ONSC 1166

COURT FILE NO.: CR-14-3130

DATE: 20160219

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Linus Bastien

Ruling on application to quash committals

Thomas J.

Released: February 19, 2016