R. v. R.Q.G., 2016 ONSC 5701

CITATION: R. v. R.Q.G., 2016 ONSC 5701

COURT FILE NO.: CR-15-235

DATE: September 29, 2016

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

R.Q.G

Gerard Laarhuis, for the CROWN

Clyde Smith, for the ACCUSED

HEARD: August 2, 3 & 4, 2016, Reasons Delivered orally September 29, 2016

REASONS FOR JUDGMENT

TAUSENDFREUND, J

1With respect to these proceedings, including the reasons that now follow, there will be an Order under s. 486.4 CCC that any information that may identify the complainant or a witness shall not be published in any document or broadcast. As such, I will refer to the complainant by his initials, J. B or “the complainant”.

2The accused faces a two count indictment. Each of these counts allege the accused sexually assaulted J. B. contrary to s. 271 CCC. These two counts combined allege that these sexual assaults occurred between September 1, 1984 and August 10, 1993, at the City of Kingston and elsewhere in the East Region.

3J. B. was born […], 1974. To say that he had a difficult upbringing is to understate the facts. He was born and raised in Windsor, Ontario. He has one sibling, a sister who is 3 to 4 years older than he. His father was an alcoholic and a petty criminal. He divested himself of normal and expected parental obligations and familial interactions. On the rare occasions that he did, he was abusive. J. B. could summon only one recollection of a positive interaction with his father. His mother bore the brunt of his father’s physical abuse. As was his father, she as well was addicted to alcohol and drugs. His father died in 1981 when J. B. was 7 years of age.

4J. B.’s earliest experience with the Children’s Aid Society (“CAS”) was in Windsor when he was still a toddler. He serially remained in the care of the CAS initially in Windsor and then in Kingston until age 17. His mother had moved to Kingston with the children shortly after his father’s death. The social assistance income his mother received she used largely to support her drug habit. As a result, there was little or no food in the home.

5After his father’s death, it was his mother who then became the abusive parent. There were occasions when he and his sister were chained either to a bed or locked in a closet while their mother was away from the home. When not restrained in that manner, he often ran the streets, but did so without goal or direction.

6His mother failed to teach the children about basic hygiene, resulting in expected negative body odour and other issues. He saw himself as one who did not fit in. His contemporaries made fun of him on a regular basis, causing him to remain isolated from general human interaction. Not surprisingly, he had no friends at school.

7The school system for him was a special education class at S[...]’s Public School in Kingston. He struggled with learning issues and did not connect with his classmates. One positive experience he recalled was a relationship he developed at age 12 with a teacher, Bob Cussler who ran the “alternatives to violence” program at S[...]’s.

8J. B. left school at age 16 but was encouraged by Cussler to return. He did, but stated that he “was just there”. He had no interest and did not participate. He left school for the last time at or about age 17.

9His mother committed suicide in 1995 when he was 21 years of age.

10J. B.’s connection to the Catholic Church was only through his school attendance at S[...]’s. He came to believe in some of the Catholic faith which he learned at school. That included the belief that a Priest had the ability to forgive sins.

11J. B. first met the accused either in grade 7 or 8 at S[…] Public School. Ms. H. was then his teacher and remained so for several consecutive years. The accused wore a Priest’s collar. J. B. believed him to be a Priest. He was not certain of the accused’s role at S[…]’s or the nearby R[…] High School where he first saw the accused who then had an office at the school. The complainant described himself at that time as being confused and “lost” and one who was starved for guidance and direction. The accused gave him the attention J. B. apparently craved. He found the accused to be helpful and kind. He took J. B. on outings, such as skating in the nearby conservation area. The accused drove him there in a vehicle which J. B. described as a newer silver coloured two door Toyota pick-up truck with a bench seat and 5 speed standard transmission. He recalled that it was always very clean with nuts in the ash tray. The accused took him to movies. One such movie was “Turner and Hooch”. Counsel agreed that this movie was released in 1989. The accused also took J. B. canoeing and played hockey with him in the winter on the conservation area pond. He knew that the accused spoke French and saw that female parishioners would kiss the hand of the accused.

12In 1990 J. B. had met a girl whom he liked. The problem was that her father had instructed him to stay away from his daughter, based on J. B.’s criminal record for a 1989 robbery, a fact which was known to the girl’s father, a Sgt. Kellett with the OPP. J. B. then asked the accused to accompany him to the OPP station to speak to Sgt. Kellett with a view of giving J. B. a chance to spend time with the Sgt.’s daughter. The accused did. Unfortunately for J. B., the meeting did not resolve the issue in his favour. On the return drive, the accused asked J. B. if he and the girl had sexual relations. The mood of the accused by then had changed. J. B. saw this as a sign of jealousy.

13Occasionally J. B. helped the accused to get ready for evening mass which the accused conducted in the French language. The accused had a room at the rectory attached to the church. J. B. visited him there periodically. He recalled the rectory to have had 4 bedrooms, a communal bathroom, a common area with a TV and a cabinet that stored alcohol. J. B. stayed at the rectory for short periods of time on three different occasions when he found himself to be homeless. He also described the rectory basement where a number of wine bottles were stored. He recalled the basement to have been dark and dingy, with unfinished concrete floors and walls. It was used for storage purposes only.

14J. B. described the bedroom of the accused to contain a single bed with a coat rack, a dresser, mirror and a cross on the wall. There were mint mixture candies on the dresser and loose change including “loonies”. Counsel agreed that the “loonie” came into circulation in Canada in 1987. He further recalled a rosary hanging from the bedpost and clean white shirts in the closet which lacked doors. He and the accused occasionally would drink alcohol after working hours.

Alleged sex acts

15J. B. could not state with certainty his own age when he first met the accused who took his confession from time to time. During that process they talked about the sin of masturbation.

16The first sexual contact with the accused was in the truck. Although he cannot be certain as to his age when this happened, he believed that he was about 12. He recalled that he first met Mr. Cussler at age 12 years and that he had not yet met Mr. Cussler at the time of this incident. The accused and he were returning from a skating outing at the conservation area. The accused had placed a bag of skates next to the passenger door. That forced J. B. to sit in the middle of the bench seat close to the gear shift next to and within arm’s reach of the accused who was driving. The accused had made it sound like it was an accident when he touched him on his penis. Other than that, nothing was then said between these two.

17On a later occasion, the accused asked J. B. if he ever touched himself. He suggested that J. B. should just enjoy it.

18J. B. was then living with this mother. This was during a period when he was not in a foster home. As there was no structure at home, J. B. started to spend more time with the accused who then started to buy clothes for him. His conversation with J. B. about touching himself became more frequent. J. B. was then in his puberty years. When the touching became a regular occurrence, J. B. asked the accused whether it was wrong and whether they would both go to Hell. The touching proceeded to masturbation of J. B. with the accused telling him that it was all right, as long as it was with him. He then asked J. B. whether he would masturbate him. J. B. complied. This became a regular practice, occurring virtually each time they saw each other which by then was most weekends. The masturbation occurred in places such as the truck, in the garage or the rectory. The accused would either undo J. B.’s pants or would ask him to do it himself. Other times, the accused would hug him with a “dry hump” during which the accused would get himself worked up. On one occasion he ejaculated on J. B.’s coat and pants. The accused at other times would touch J. B. with his penis on J. B.’s stomach area.

19The touching proceeded to oral sex by the accused on J. B.

20J. B. recounted one particular occurrence in the bathroom rectory. He had consumed alcohol in the presence of the accused. He became ill as a result and ran to the toilet where he vomited. The accused followed, ostensibly to comfort him. In doing so, he hugged J. B. The accused then took off J. B.’s clothes and ejaculated in the complainant’s mouth. Having recounted that episode, J. B. spontaneously left the courtroom in the middle of his questioning. The court recessed until the following day when J. B.’s questioning continued.

21Touching by the accused occurred frequently. Many times it happened in the truck, but also in other places such as movie theatres where the accused had taken him. It also occurred in change rooms during the course of the accused buying clothes for J. B. A particular purchase J. B. recalled was a pair of running shoes. That purchase was important to J. B., as these shoes were an object of admiration by his classmates. Until then he had always been ashamed of the type of shoes he had to wear.

22There were many incidents of oral sex, including the accused ejaculating into J. B.’s mouth. The accused told J. B. that the accused’s penis was like the body of Christ and that this activity for that reason was all right. The accused assured J. B. that there would be no negative consequences for him in Heaven. J. B. was then about 13 or 14 years of age. It was the time of his confirmation in 1989.

23He described one particular occasion in the rectory basement. The accused attempted to insert his finger into J. B.’s anus. It was painful, J. B. objected and the accused told him that he would not do it again.

DISCLOSURE

24J. B. on one occasion spoke to Mr. J.H., the principal at S[...]’s. He did so in general terms. Absent specifics and names, he told Mr. J.H. his sexual experiences. Mr. J.H. simply told him to return to class. J. B.’s impression was that Mr. J.H. did not believe him.

25In 2013 J. B. was on probation and lived in Kitchener. He spoke to his probation officer, Deborah Penrose. On consent, “her will say” statement was introduced as Exhibit 3. Excerpts of her statement are as follows:

“. . . Mr. B. disclosed to me that he had been sexually abused as a youth. A policy of the Ministry of Community Safety and Correctional Services requires that, in these circumstances, a Probation Officer is to facilitate any disclosures of historical sexual abuse without questioning or challenging the allegations and to offer support and resources to the victim. It is not a practice to collect evidence as it relates to this disclosure. However, the complainant is to be encouraged to contact police directly about this information. Should the complainant not wish to do so, it is then the obligation of the Probation Officer to report this information to the appropriate police service in order to eliminate the possible threat to other potential victims. . .

With respect to Mr. B., he disclosed to me details of his abuse during a regular interview on February 07, 2014. He told me. . . that he did not wish to pursue this any further with the police as he understood that the perpetrator was deceased and that he had been charged with other related offences sometime in the early to mid 2000’s. I advised that I would be required to follow up with police in any event. I did this by placing an initial call to Kingston Police Service on February 07, 2014. [I spoke] with Detective Legare at Kingston Police on February 18 2014. . . I relayed to police that Mr. B. had shared with me that he had been sexually abused by a priest named R. G. when he was a student at S1[…] in Kingston, Ontario.”

26J. B. was urged by the Probation Officer to report the matter to the police. His response was that he did not wish to and asked her not to report his conversation with her to any police authorities. As the reason for this request, he stated that he did not wish to appear in court and testify in the manner that was now occurring. In any event, he believed the accused to have died. He had not heard from him in years. He further stated that although he had been through a lot in his life, his present experience in court testifying about his involvement with the accused so many years ago was the worst of his life experiences.

27In October 2014, he attended at the Kingston Police Service on an unrelated matter involving his car. When he identified himself, the police told him that they had been looking for him, but that he was not in trouble. He was then interviewed about this matter. This resulted in a statement by J. B. to the police about this matter.

28J. B. admitted to a lengthy criminal record. It started in 1989 in youth court and continued to May 2016. There are 52 convictions including robbery, possession of a weapon, theft, fraud, assault with a weapon, possession of property obtained by crime, public mischief, possession of drugs and a series of failing to comply with undertakings.

29J. B. experienced several suicide attempts, including attempts at hanging and injection of pills, opiates and other drugs. On at least one of these occasions, he was in a hospital intensive care unit for several days apparently close to death. According to J. B., he now has difficulties identifying dates and times. He ascribes the cause of these memory lapses to his several suicide attempts. For example he was unable to state how old he was in 1990, nor could he state his age or the year when he started school.

30J. B.’s sexual encounters with the accused were numerous and spread over a number of years. Although J. B. could not be specific, he stated that it started during the time he was enrolled in grades 6, 7 and 8. The sexual activity with the accused continued until J. B. was about 16 or 17 years of age.

31He agreed that in 2008 or 2009, he had given a false statement to the police about two men having attempted to defraud him. There was no substance to this allegation. Before the police investigation actually started, he changed his mind and told the police that his story had been false.

32During the course of his cross-examination, he again left the courtroom, but returned a short time later. As an explanation for these spontaneous reactions in leaving the courtroom, J. B. stated that he felt shame when asked to recount the sexual events with the accused. It raised feelings in him of self-hatred. Sex now made him feel “dirty” and that sexual relations with his current partner were non-existent.

33In the late ’90, he and his then girlfriend returned to Kingston from British Columbia. They planned to get married. His then plan was to have the accused marry them. He proceeded to the church property where he had last seen the accused. When J. B. arrived, he saw the accused playing ball with other children on the church front lawn. J. B. did not receive a warm welcome by the accused who told him to leave. That was the last time he saw the accused until this trial process.

DARRYL KELLETT

34He is a retired OPP officer. He recalled that in 1991 a young man introduced himself as J. B. Accompanied by a priest, he had come to see him at the detachment. The priest did most of the talking. He told him particulars of J. B.’s background, that he had lost both parents, that the CAS had taken him into care and that he, the accused, had arranged for J. B.’s involvement with the church.

MR. J.H.

35He was the principal at S[...]’s from 1983 to 1989. He recalled that the complainant had been enrolled in grades 7 and 8 in a special class for learning and behaviour disabilities. He did not recall the accused ever being involved at the school.

MS. H.

36She is a retired teacher who taught at S[...]’s for six years from 1982 to 1988. She taught the disability class for students with learning and behavioural issues. J. B. was in her class for two to three years. She described him as being quiet and shy with a difficult background. He struggled socially and had learning issues. He appeared to be self-conscious with respect to his clothing and his background.

WILLIAM GERVAIS

37He testified as the Arch Bishop’s delegate for the Arch Diocese of Kingston.

38He confirmed that the accused was ordained as a priest in May 1988 and appointed as a Chaplin in 1990 to the R[…] High School in Kingston. Prior to his ordination, the accused undertook a pastoral internship in the years 1987 and 1988 in Kingston. In the years 1987 to 1992, the pastoral duties of the accused equally involved both Brockville and Kingston.

DOCTOR P. FEDOROFF

39Dr. Fedoroff was the co-director of the Sexual Behaviours Clinic at the Royal Ottawa Hospital. In 2004 Dr. Federoff carried out an assessment of the accused at the request of and as arranged by the Catholic Church. Although Dr. Federoff did not testify, counsel agreed that he was a competent and compellable witness and that if he were to testify, his evidence would be identical to his report of June 4, 2004. On that basis and on consent, certain excerpts of the report were entered into evidence. The following excerpts of Dr. Federoff’s report are these:

• Mr. G. [the accused] entered the Ministry at age 36 and became a priest at age 40.

• The longest job Mr. G. has ever had was as a Roman Catholic Priest for 16 years.

• Mr. G. did imply that there may have been. . . underage males and specifically implied 4 males, all age 14. These events would have occurred 20 to 30 years ago. The activities would have included mutual oral sex with one of them. He denied any anal sexual activity but there was sexual touching.

• Mr. G. took a vow of celibacy 16 years ago. In response to my questions about whether he had entered the Priesthood due to his knowledge that he may have abnormal sexual interests, Mr. G. initially denied it but then said that this may have partially contributed to his decision.

• I asked Mr. G. what he thinks his main problem is and he said, “Thirty to twenty years ago I had sexual relations with some boys between the ages of 14 and 16. I wanted to feel safe and others to feel safe and reassured.”.

• . . . He said that he has had sex with 9 males under the age of 15 when he was age 15 to age 35. He denied ever having sex with any female minors.

• Asked if there are any other concerns that he thought I should be aware of, he said, “I have not acted out [for] 15 to 20 years. I do not want to and I do not intend to. I would like to learn more so that my controls or new controls will assure this for me and my friends and family”.

ANALYSIS

40If these events occurred, there are but two witnesses, namely the complainant and the accused. The latter did not testify. That, of course, is his right.

41That takes me to the evidence of the complainant. The Crown seeks a conviction only on counts 1 and 2 of the 5 count indictment. If I am satisfied beyond a reasonable doubt based on the evidence of the complainant that there was sexual contact between these two, I would find the accused guilty of these two counts in the indictment. Based on the evidence of J. B., his relationship with the accused as a priest put the accused in a position of trust vis-à-vis the complainant. Accordingly, the complainant would not legally have been in a position to consent. That would be so, provided I am satisfied beyond a reasonable doubt that there was sexual contact between the accused and J. B.

42Counsel for the accused urges that the evidence of the complainant should leave me with a reasonable doubt. Counsel points to what he states are inconsistencies in the evidence of the complainant. He also points to J. B.’s criminal record and J. B.’s admission that on one occasion he gave a false story to the police in his attempt to falsely implicate a third party.

43I will now turn to these issues. Before I do, I remind myself that the complainant testified as an adult about occurrences that are said to have happened to him more than 25 years ago when he was a child. As such, I have regard to the following statement by McLachlin, J. (as she then was) in R. v. W.(R.), a 1992 decision of the SCC at para 26:

. . . Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her [or his] mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she [or he] was a child, her [or his] credibility should be assessed according to criteria applicable to her [or his] as an adult witness. Yet with regard to her [or his] evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of events to which she [or he] is testifying.

44The apparent inconsistencies in the evidence of the complainant which counsel for the accused raised are these:

The Truck of the Accused

45The complainant testified that the accused drove him to various outings, such as skating and canoeing at outlying places including the conservation area. He recalled that the accused drove a silver Toyota. J. B. described it as a newer vehicle with a bench seat, a 5 speed standard transmission and 2 doors. He recalled the truck to have been clean. There were nuts in the ashtray. Exhibit 7 is a printout from the Ministry of Transportation of automobiles owned over the years by the accused. It indicates that he owned a 1989 white Toyota that year and a grey Toyota in the years 1990 to 1991.

46The complainant stated that the first sexual touching occurred in the truck of the accused during one of these outings. The accused had placed a bag of skates on the bench seat next to the passenger door. That forced the complainant to sit in the middle of the bench seat close to and within reach of the accused. It was during the course of such a drive that the first act of sexual touching is said to have happened. The complainant’s description of the placement of the bag of skates next to the passenger door grants an air of reality to the complainant’s description of this occurrence. As well, the detailed description of the Toyota interior allows me to find that the accused in fact had a Toyota truck either silver, white or grey in colour which served as the transportation for these two to the skating or canoeing activities.

RECTORY

47The complainant was questioned about the layout of the Rectory as to the location of the various rooms and the presence or not of a church hall. Although J. B. appeared to have had a different recollection than others of the layout in certain aspects of the Rectory, I ascribe these differences entirely to the passage of time. I find these differences to be minor and inconsequential. Other recollections of the Rectory to which the complainant testified were quite detailed. He stated that the accused had a large collection of alcohol. He recalled 4 bedrooms and a communal bathroom down the hall, a common area with a TV and chairs and an alcohol cabinet having two doors and drawers. J. B. described the bedroom of the accused to have had a single bed with a coat rack, a cross on the wall, a dresser and mirror, a rosary hanging from a bedpost, clean shirts in a closet without doors, a tile floor that shone with the entire room having had an appearance of cleanliness. I accept the complainant’s recollection of the Rectory, despite certain misdiscriptions. What flows from that finding is that I accept that the complainant had frequented the Rectory and in particular the bedroom of the accused.

DATES AND TIMES

48J. B. was not certain of the number of years that he spent at S[...]’s Public School. He recalled that he was in a class of about 12 students, all of whom had special needs based on learning and behaviour issues. He believed that he was in that class for grades 6, 7 and possibly two years in grade 8, that Ms. H. was the teacher for that class during those years and that Mr. J.H. was the principal of the school. He was not certain when he left the school system, but believed that it was either at age 16 or 17. Ms. H. confirmed that he was in her class for 2 or 3 years, that he struggled socially and had learning issues. When cross-examined on his inability to be precise on dates and times, J. B. pointed to his past drug use and his several suicide attempts as the cause. He considered himself to be a drug addict, one who over the years had ingested drugs such as cocaine, morphine, crystal meth and dilaudid. He now is left with an inability to properly recall dates and times. When asked how old he was in 1990 and what grade he was then in, he was unable to give a definitive answer.

OPPORTUNITY

49The complainant’s teacher, Ms. H. was not aware of the accused’s presence at S[...]’s until 2000, long after the complainant had left the school. The then principal, Mr. J.H. did not recall seeing the accused at the school, but agreed that he may have transferred in after Mr. J.H. left in 1989.

50William Gervais, the delegate of the Arch Bishop of Kingston testified that the accused as a Deacon and then as a priest in the period 1987 to 1992 divided his pastoral duties between Brockville and Kingston.

51The uncontradicted evidence of the complainant is that he met the accused in grades 7 and/or 8 during his first confirmation in which the accused assisted. He recalled that the accused wore a clerical collar and that female parishioners would kiss his hand. He found the accused easy to talk to at a time when he was confused and lost and was starved for guidance and direction. The accused accompanied J. B. to speak to Sgt. Kellett. That meeting was confirmed by Darryl Kellett who recalled that it was in 1991.

52J. B. testified that the sexual touching by the accused also occurred when these two attended at movie theatres. One such movie they saw was “Turner and Hooch”, a movie released in July 1989.

53I am satisfied on the evidence that the paths of the complainant and the accused crossed in the late 1980’s and the early 1990’s and while the complainant was in his mid teens and a student at S[...]’s.

MOTIVATION

54Counsel for the accused points to the complainant’s extensive criminal record. In particular he points to the incident of the complainant giving a false story to the police to implicate a third party with the allegation of having defrauded him. The complainant agreed that he had made up this story, but then changed his mind. Before the investigation started, he had told the police that his story was false.

55I take counsel’s point to be that this should be sufficient for me to impute unspecified motives to J. B. to have made up his entire evidence of the accused’s involvement in his life which, also for unstated reasons, I should discard in its entirety.

56That takes me to the evidence of how this investigation came about in the first place. In 2013 the complainant reported to Deborah Penrose, his then Probation and Parole Officer. His disclosure to her was prompted by her question to him whether he had ever been sexually assaulted. For reasons I already noted, it was she who then notified the Kingston Police Service.

57In October 2014 the complainant attended at the Kingston Police Service on an unrelated matter. At that time he was told by the police that they were looking for him but that he was not in trouble. At the request and urging of the police, J. B. gave a statement to the police about alleged sexual touching by the accused. These charges then followed.

58I also note that on two occasions during his testimony the complainant spontaneously bolted from the courtroom. On each of these occasions, he uttered a statement to the effect that he did not wish to be in court and had no further interest in proceeding with his evidence. The trial was delayed for a short period, with the complainant then agreeing to continue with his testimony. I accept that these reactions by the complainant were based entirely on the fact that he did not wish to testify against the accused in the first place. If there was any ulterior motive for the complainant to have given the testimony he did, I saw no signs of it. I find that there were no such ulterior motives.

59On the evidence, I cannot and do not ascribe an ulterior motive to J. B. to have testified as he did. In short, I accept his evidence. In coming to that conclusion, I am struck by the detail of J. B.’s evidence, such as the description of the interior of the Toyota and the accused’s bedroom in the Rectory. I also have regard to the corroborative evidence of Darryl Kellett of his meeting at the detachment with J. B. and the accused and the statements of the accused to Dr. Federoff concerning his then sexual preferences.

60I am not satisfied beyond a reasonable doubt as to the time line set out in count 1. It will be dismissed. However, I find that the Crown has proven its case beyond a reasonable doubt with respect to count 2 on which count the accused will be found guilty.

Tausendfreund, J