Superior Court of Justice (Ontario)

Court File No.: 14-SA19545 Registry: Ottawa, Ontario

Between:

HER MAJESTY THE QUEEN – and – Stephen Amesse Defendant/Respondent

Counsel: F. Rupert, for the Crown B. Carew, for the Defendant/Respondent

Heard: March 6-10, 2017 at Ottawa, Ontario

Before: The Honourable Mr. Justice M. S. James

Reasons for Judgment

[1] This case involves claims by the complainant that he was sexually assaulted as a teenager by his parish priest. I will refer to the complainant as “J.B.”

[2] The indictment sets out 5 counts against the accused which arise as a result of two incidents, both of which relate to events that are alleged to have taken place while J.B. was visiting the accused in his residence when J.B. was about 14 years old.

[3] The allegations against the accused were disclosed by J.B. when he was about 19 years old.

[4] J.B. met the accused when he was in Grade 5 at G[…] Elementary School. It was within the territorial area of the Holy Spirit Parish. The accused was the parish priest. He was often at the school. He mixed well with the students and staff. The Holy Spirit parish did not have a Church until a few years later. Prior to 2008, mass was celebrated in the gymnasium of Sacred Heart Secondary School. J.B. and his family regularly attended mass in the gymnasium.

[5] J.B. had difficulties at school. There were issues between J.B. and some of the other students. J.B. was big for his age. His father said that by the time J.B. was 11 years old he was over six feet tall and weighed close to 200 pounds. By Grade 7 he was shaving.

[6] The principal at J.B.’s school asked the accused to make an effort to support J.B. He had been previously diagnosed with A.D.H.D. The accused said he made a point of providing J.B. with extra attention. He said he tried to make him feel special. The accused said when he was young, a priest had been very kind to him. He remembered how that had lifted his spirits and he wanted to do the same for J.B.

[7] For several years the accused sent J.B. cards on his birthday and at Christmas with some money in it, at least $50.00. The frequency with which cards were sent and the amounts of money they contained was a contested fact. J.B. said cards sometimes contained hundreds of dollars. His father said initially the amount was $50.00 but the amount increased over time to as much as $150.00.

[8] The accused said there may have been a couple of cards per year for about three years. He said he would put a $50.00 bill in with the cards, never more than that.

[9] J.B. said at various times the largest amount was $300.00 or $400.00 or $500.00 dollars. At trial he said the largest amount was $400.00 but he told his parents it was less.

[10] J.B.’s parents were uncomfortable with the fact that the accused was enclosing money in the cards he sent to J.B. J.B.’s father specifically requested that the accused discontinue the practice, in part because J.B.’s brother and sister were feeling left out. The accused continued to send money, how often is in dispute, but mentioned that the gift should be shared with J.B.’s siblings.

[11] In 2008 a new church and rectory were built to give the Holy Spirit Parish a permanent home. Services were moved from the school to the church. There were a few occasions, again the precise frequency is in dispute, when J.B. served as an altar boy. His family continued to be involved in the life of the parish and attended mass regularly. J.B. would sometimes visit the accused in the rectory. At one point the accused requested that J.B. stop dropping in to visit.

[12] The most serious incident is alleged to have occurred during one of these visits. The precise date is not clear. The accused said that J.B. was interested in digging for historical artifacts at the back of the rectory and on the day in question he was there for that purpose. It was a warm day and after working for a while, J.B. said he went into the house.

[13] On J.B.’s version of events, the accused asked him if he wanted to take a shower. J.B. agreed. When he finished showering, the accused entered the bathroom with a body shaver and showed him how to use it. J.B. was wearing only a towel which he removed. The accused said that they were two grown men and J.B. thought the accused’s suggestion to shave J.B.’s crotch area was normal. The accused held the shaver and touched J.B.’s penis and testicles as he showed J.B. how to use it.

[14] Afterwards J.B. put on his t-shirt and shorts. Then the accused asked J.B. if he wanted a massage and J.B. agreed. He took off his shirt but kept his shorts on. He laid down on the bed face down. The accused massaged his back and shoulders with massage oil. J.B. said it felt good and weird at the same time. It lasted about 10 minutes.

[15] Afterwards the accused gave him a ride home. J.B. took the shaver home with him as a gift. J.B.’s father remembered J.B. arriving home that day with a brand new shaver still in the original packaging. He also said J.B.’s hair was soaking wet as if he had just showered.

[16] The accused gave a much different account of the events of the day in question. He recalled J.B. coming over that day. It was a Sunday afternoon. J.B. never took a shower but he washed his hands at the sink. J.B. was tired from his digging and the accused gave him a ride home.

[17] The accused recalled giving J.B. a body shaver that the accused had purchased for him at Walmart. J.B. had expressed an interest in bodybuilding and the accused had given him the shaver to use in conjunction with bodybuilding. It was still in the wrapper. The accused never used it to shave J.B. and certainly did not touch his genitals. There was no shower, no shaving and no massage afterwards.

[18] The second incident took place in the rectory when J.B. was there for a visit. J.B. said he was fully clothed and seated in a chair. The accused may have given him a glass of brandy. He said the accused rubbed his shoulders for a minute or two. He didn’t think anything of it at the time.

[19] In response to this allegation, the accused said it never happened. He never had brandy in his house and he never served brandy to J.B.

[20] The determination of whether Crown counsel has proved the guilt of the accused beyond a reasonable doubt requires that I make factual findings based on conflicting evidence. I have to determine what allegations I will accept and what allegations I am not prepared to accept.

[21] Fact-finding in the face of contradictory evidence involves assessing the credibility of witnesses. Generally speaking, the assessment of credibility includes observing witnesses as they give their evidence, considering conflicting evidence in relation to known facts, determining the presence or absence of inconsistencies, and determining the presence or absence of corroborating evidence. This is not a complete list of factors to be taken into account. While engaging in the process of finding facts I may accept some, none, or all of a witness’s testimony.

[22] Determining guilt or innocence involves more than a credibility contest. Guilt cannot be determined by choosing among competing versions of what happened. The accused has two very important advantages in this situation. He has the benefit of presumption of innocence and the prosecution must prove his guilt beyond a reasonable doubt. Reasonable doubt is a higher standard of proof than probable or likely guilt. If I was to conclude that the accused was likely guilty, he would be entitled to be found not guilty because Crown counsel would have failed to prove his guilt beyond a reasonable doubt.

[23] When the accused presents evidence that contradicts the evidence tendered by Crown counsel, the Court must apply an analytical framework commonly referred to as the W.D. analysis. There are three elements to consider. The first element is obvious. If I believe the accused, he is entitled to be found not guilty. Secondly, even if I don’t believe him, disbelief alone is not sufficient to justify a finding of guilt. That’s because even if I don’t believe his testimony, I may still have a reasonable doubt as to his guilt, in which case he is also entitled to be found not guilty. Thirdly, even if I disbelieve the accused and his testimony does not create a reasonable doubt, I must consider the quality of the evidence against him. At its core, that is what this case turns on: the persuasiveness of the evidence against the accused. The court must be satisfied by acceptable evidence that the guilt of the accused has been proved beyond a reasonable doubt.

[24] And there are some issues with J.B.’s evidence. Some of it struck me as improbable. For example, he said that the accused regularly kissed him on the lips when greeting J.B. openly at Church in the presence of J.B.’s parents. Also, J.B. said that the accused had a framed picture of a naked man on display in his living room. This struck me as unusual and not in keeping with what one might ordinarily expect to find in a priest’s home.

[25] There were also inconsistencies in his evidence. At one point during his examination in chief, J.B. said that there was only one occasion when the accused gave him a ½ glass of brandy at the rectory. In his earlier statement to the police, he said that the accused gave him alcohol once in a while (implying that it happened more than once) and which he described as “big glasses of brandy”.

[26] In describing the shower incident when the accused is alleged to have shaved J.B.’s pubic hair with a body shaver, J.B. said that the accused was wearing a t-shirt and shorts. In his police statement, J.B. said that the accused was naked at the time.

[27] At trial, J.B. described two massaging incidents. One occurred as part of the shower incident with the shaver when J.B. said he laid face down on the accused’s bed wearing only his shorts. The other massage incident occurred when he was sitting in a chair fully clothed and the accused massaged his back and shoulders. In his earlier police statement, J.B. said there was an occasion when he removed his pants at the request of the accused. Another time the accused pulled down his pants. This was different than his evidence in court.

[28] At trial, J.B. admitted that he gave evidence at the preliminary hearing that he knew was not truthful. He also gave misleading evidence about the circumstances surrounding the termination of his employment at a grocery store where he was employed.

[29] Another example: in his initial handwritten statement to police, J.B, said that the accused fondled his penis and testicles on multiple occasions. At trial he said it only occurred once. There was also a lack of consistency regarding the amounts of cash given to J.B. by the accused. At trial J.B. said the largest amount he received was $400.00. In his police statements he referred to varying amounts including a $500.00 gift which at trial he said was not correct.

[30] On the issue of how often the accused sent cards to J.B. and how much money they contained, it seems to me that someone in the position of the accused wouldn’t want J.B.’s parents to know how much money he was giving their son. Why would he mail the cards to J.B.’s house as opposed to giving him the cards when they were together? Mailing the cards would seem to increase the risk of detection.

[31] Assuming for the moment that I accept that the Crown’s theory of the case, that what we have here is an abuser who sought out a boy who looked like a man, that the victim had personality traits and other issues that made him an easy target for exploitation, that because of these characteristics he would be less likely to be believed if he disclosed what was going on, and that the accused carefully groomed his victim to facilitate this exploitation, at the end of the day the prosecution’s evidence must be so persuasive that there is no room for reasonable doubt.

[32] On the evidence before me I am unable to come to such a conclusion. The cumulative effect of the discrepancies and inconsistencies, in the face of the denial by the accused, is such that I am unable to determine conclusively what is truthful and what is not. As a result, the accused is entitled to be found not guilty on all counts on the indictment.

The Honourable Mr. Justice M.S. James Released: May 2, 2017