R. v. McGrory, 2019 ONSC 3776

Case Summary

This criminal trial concerned historical allegations of indecent assault and gross indecency against William Barry McGrory, a former priest, involving two complainants (JB and RG) for acts committed between 1964-1971. The Crown withdrew charges related to a third complainant who had passed away. The court assessed the credibility and reliability of the complainants' evidence, finding them both credible and reliable, supported by the accused's own admissions and similar fact evidence. The court found the accused guilty beyond a reasonable doubt on all remaining counts, emphasizing his abuse of a trusted position. Applying the Kienapple principle, convictions were registered for indecent assault, and the charges of gross indecency were stayed. interesting_citations_summary: > The decision provides a detailed application of principles governing credibility and reliability in historical sexual assault cases, affirming that inconsistencies do not automatically negate evidence and that delayed disclosure does not create an adverse inference. It relies on R. v. Morrissey to differentiate credibility from reliability, R. v. D.D. regarding the significance of delayed complaints, and R. v. Leroux for defining the historical elements of gross indecency and indecent assault. The court also applied the Kienapple principle to stay gross indecency charges where convictions for indecent assault were registered for the same acts, preventing multiple convictions for the same delict. final_judgement: > William Barry McGrory was found guilty beyond a reasonable doubt on all counts of indecent assault and gross indecency for complainants JB and RG. Pursuant to the Kienapple principle, convictions for indecent assault were registered, and the charges of gross indecency were stayed. winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2019 decision_number: 3776 file_number: "CR-17-RA19524" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc3776/2019onsc3776.html" keywords: - Sexual assault - Indecent assault - Gross indecency - Historical allegations - Credibility - Reliability - Criminal Code - Kienapple principle - Abuse of trust - Similar fact evidence areas_of_law: - Criminal Law - Evidence cited_cases: legislation: - title: "Criminal Code" url: "https://laws-lois.justice.gc.ca/eng/acts/C-46/" - title: "Criminal Law Amendment Act, 1968-69, S.C. 1968-1969, c. 38, s. 7" case_law: - title: "R. v. Leroux, 2013 SKQB 395, 432 Sask. R. 86" url: "https://www.canlii.org/en/sk/skqb/doc/2013/2013skqb395/2013skqb395.html" - title: "R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.)" url: "https://www.canlii.org/en/on/onca/doc/1995/1995canlii3498/1995canlii3498.html" - title: "R. v. Norman (1993), 16 O.R. (3d) 295" url: "https://www.canlii.org/en/on/onca/doc/1993/1993canlii3387/1993canlii3387.html" - title: "Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1" url: "https://www.canlii.org/en/on/onca/doc/2010/2010onca193/2010onca193.html" - title: "R. v. S. (W.) (1994), 18 O.R. (3d) 509 (C.A.)" url: "https://www.canlii.org/en/on/onca/doc/1994/1994canlii7208/1994canlii7208.html" - title: "R. v. Hull, [2006] O.J. No. 3177 (C.A.)" url: "https://www.canlii.org/en/on/onca/doc/2006/2006canlii26572/2006canlii26572.html" - title: "R. v. Boyce, [2005] O.J. No. 4313 (C.A.)" url: "https://www.canlii.org/en/on/onca/doc/2005/2005canlii36440/2005canlii36440.html" - title: "R. v. R.D., 2016 ONCA 574, 30 C.R. (7th) 373" url: "https://www.canlii.org/en/on/onca/doc/2016/2016onca574/2016onca574.html" - title: "R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412" url: "https://www.canlii.org/en/on/onca/doc/2009/2009onca413/2009onca413.html" - title: "R. v. Nyznik, 2017 ONSC 4392, 40 C.R. (7th) 241" url: "https://www.canlii.org/en/on/onsc/doc/2017/2017onsc4392/2017onsc4392.html" - title: "R. v. D.D., 2000 SCC 43, 2 S.C.R. 275" url: "https://www.canlii.org/en/ca/scc/doc/2000/2000scc43/2000scc43.html" - title: "R. v. M. (P.S.) (1992), 77 C.C.C. (3d) 402 (Ont. C.A.)" url: "https://www.canlii.org/en/on/onca/doc/1992/1992canlii2785/1992canlii2785.html" - title: "R. v. T.E.M. (1996), 1996 ABCA 312, 187 A.R. 273 (C.A.)" url: "https://www.canlii.org/en/ab/abca/doc/1996/1996abca312/1996abca312.html" - title: "R v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908" url: "https://www.canlii.org/en/ca/scc/doc/2002/2002scc56/2002scc56.html" --- # Court File and Parties **COURT FILE NO.:** CR-17-RA19524 **DATE:** 2019/06/24 **ONTARIO** **SUPERIOR COURT OF JUSTICE** **B E T W E E N:** Her Majesty the Queen – and – William Barry McGrory **Counsel:** John Semenoff for Her Majesty the Queen Leonardo Russomanno for Mr. McGrory **HEARD:** April 29, 30, May 21 and May 22, 2019 --- ## Reasons for Decision Pursuant to s. 486.4 of the [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/C-46/) there is a continuing order in place making it an offence for any person to publish information that might lead to disclosure of the identity of the complainants. O’Bonsawin J. ## Background [1] This is a historical case which initially consisted of three complainants, JB, GM and RG. They alleged that Mr. McGrory sexually assaulted them when he was a priest from 1964-1971. I use the term “sexually assault” since indecent assault and gross indecency are currently referred to as “sexual assault”. [2] Mr. McGrory was charged with three counts of indecent assault and three counts of gross indecency. He pled not guilty to six charges. [3] The issues in this case are whether or not the Crown has proven beyond a reasonable doubt that the sexual assaults occurred. This turns on an assessment by the court of the credibility and reliability of the evidence provided. [4] At the commencement of the trial, the Crown withdrew counts #3 and 4 because they relate to complainant GM who passed away. In addition, the parties agreed to a section 486.4 Order regarding the non-publication of information that could lead to the identification of the complainants. [5] The Crown called three witnesses to testify: JB, RG and Detective Cashen. The parties agreed that CT’s evidence could be entered as evidence by way of a statement. CT is RG’s ex-wife. Mr. McGrory did not testify and the Defence did not call any other witnesses. ## Evidence [6] I will review the evidence of the witnesses. [7] I summarize JB’s evidence as follows: * JB is currently 66 years old. He was born in December 1952. He is an Indigenous man who grew up initially on the Golden Lake reserve. He was the second oldest of a family of five children. He was eight years old when the Children’s Aid Society became involved with his family for a few years. This led to him living back and forth on the reserve and in Ottawa for a period of time. * When JB was about twelve to thirteen years old, his mother moved his family to Ottawa. His mother met a man and the boys did not get along with him. JB and his older brother (he was one year older than JB) moved in with his aunt in the New Edinburg area in Ottawa. JB was about fourteen to fifteen years old at that time. * JB’s aunt’s house had two stories with an addition at back. His aunt, uncle and younger cousins slept in the addition on the first floor and JB and the boys (his brother and two cousins) slept upstairs. JB’s bedroom was in the middle of the two other bedrooms in front of the stairs. He slept alone in his bedroom. Unlike the other bedrooms, his bedroom had a curtain because it used to be his aunt’s sewing room. The front door of the house was never locked. * The summer before he moved in with his aunt, JB played football and lacrosse against guys from Lowertown. These guys knew Mr. McGrory and he played football and hockey with them. This is how JB met Mr. McGrory. When JB first met Mr. McGrory, he liked him because he was a priest and to them, it was like the teacher coming to play with them. After the sporting activities, JB, others and Mr. McGrory would drink “booze, get drunk” and there was craziness. * At first, Mr. McGrory did not know JB’s aunt and uncle. He infiltrated himself into their lives and came over for dinner. * In the early days when JB moved in with his aunt, Mr. McGrory brought the boys to the rectory in Richmond, Ontario (this town is approximately 35 km from Ottawa). He made the boys do chores like cutting the grass and then gave them beer. Mr. McGrory also drank with the boys. He used the excuse that he was too drunk to drive them back to Ottawa and therefore the boys slept in the bedrooms upstairs at the rectory. * JB described alcohol as his vice when he was young. He liked the buzz. * The first time that Mr. McGrory sexually assaulted JB, he had passed out drunk in a bedroom upstairs in the rectory. Mr. McGrory came into the bedroom and then JB felt him touching his genitals. Mr. McGrory then performed oral sex on JB. The latter described feeling scared. There were other people sleeping with them in other rooms. JB thought: “what if they came, what if they knew?” He was scared that he would not get a good name if others came in and found out. The next day, Mr. McGrory drove the boys back to Ottawa. JB could not recall the exact number of times that Mr. McGrory sexually assaulted him at the rectory. He estimated more than five times. The sexual assaults were of the same nature as the first time. * Mr. McGrory also sexually assaulted JB in his aunt’s house in Ottawa. Mr. McGrory did not have a house key and since the front door was never locked, he used to come up the front stairs to get into JB’s room late after 1:00 a.m. When JB was sleeping, Mr. McGrory came into his bedroom and performed oral sex on him. JB was unable to pinpoint how many times the sexual assaults occurred in his aunt’s home but it was quite a few times. * JB never consented to any sexual activity with Mr. McGrory. When it started to happen, JB told himself: “Oh my God, I should have said something at the start.” He first told someone about the sexual assaults when he was injured at work and saw a therapist. JB later told his older brother who has since passed away. He only told his wife about the sexual assaults after he went to the police. * Mr. McGrory stopped sexually assaulting JB after he met a girl. They had a baby when JB was seventeen years old and were married when he was eighteen years old. Afterwards, JB did not want Mr. McGrory to be around his kids. His wife wanted to baptize their children and JB refused because he did not want Mr. McGrory, who had sexually assaulted him, to baptize his children. * Once while JB and Mr. McGrory were in the car on the Queensway, the O.P.P. pulled them over. At that time, JB was drinking a beer from the case that Mr. McGrory had gotten from a bootlegger. JB was mad and hit Mr. McGrory who then hit him. JB broke Mr. McGrory’s tooth. * On another occasion, JB was afraid, wanted to leave the rectory and took Mr. McGrory’s car to return to Ottawa. Just before he left, JB and Mr. McGrory had a fight because the latter was trying to stop JB from leaving. He ended up wrecking Mr. McGrory’s car. * When JB got into trouble, Mr. McGrory signed as his guarantor. After Mr. McGrory became his guarantor, JB saw him more. For example, Mr. McGrory would visit JB more at his aunt’s house and say he was checking to see if he was at home. In his aunt’s home, JB was scared to say anything because he would get kicked out. Who would believe JB over Mr. McGrory? * JB was first charged with robbery with violence for “rolling gay people in the park”. They were in the bushes and JB and his friends went in and took their money. He recalls that he was sixteen years old at the time because he was too old to go to reform school and he was sent to jail. JB was cross-examined about his criminal record which did not include a charge for robbery with violence. Although it was not listed on his criminal record, JB was adamant he had been charged and served a jail sentence. He responded: “[d]o you think that I would tell you I went to jail for nothing? You got the wrong paper. I was charged for robbing and rolling it was in the paper at that day”. * There was confusion in JB’s testimony about an incident where he and a guy decided to go to the rectory to beat up Mr. McGrory. He told the police in his statement that he beat up Mr. McGrory and in court he testified that he did not beat him up, when they arrived, they drank beer and decided not to beat him up. * In addition to driving JB back and forth to the rectory, Mr. McGrory also drove him to see his father in Cleveland, Ohio. His father had either been shot or stabbed. * JB tried to bury the thoughts of Mr. McGrory sexually assaulted him. JB hid how Mr. McGrory had sexually assaulted him for a long time. At one point in his life after he had grandkids, he could not bury it anymore. JB read a newspaper article about Mr. McGrory which got into his head and would not leave. He felt that he had to tell someone about what had happened with Mr. McGrory. In August-September 2016, JB contacted the Ottawa Police Service (“OPS”). [8] I summarize RG’s evidence as follows: * RG is currently 69 years old, he was born in April 1950. * At some point in the 1960s, he was an altar boy and was very involved in the Immaculate Heart of Mary church. RG met Mr. McGrory when he was transferred to RG’s church. He had received permission to start a youth group and Mr. McGrory was very good with the youth because he listened and he was up to date. They also played football once in a while where they would try to get something going between churches to get the youth involved. * RG’s family was very involved with the church. The priest was considered a very good friend of his family. RG fixed things at the church and he was very good friends with father Reynolds, the priest prior to Mr. McGrory. The latter became a good friend of RG’s family and he also considered him to be a good friend. His father later passed away in probably August 1969 and it became a tough time. His family consisted of five boys and his mother had cancer. RG relied more on church during that time. RG wanted to be a priest after his father had died. Mr. McGrory moved in with RG’s family and helped him after his father’s death. RG considered him a very good friend and he trusted him with all that he had. * When Mr. McGrory changed parishes and moved to Richmond, Ontario, there were occasions when RG and his brother drove up to visit Mr. McGrory. RG’s best guess of when the incident at the rectory occurred was possibly within a year of his father’s death but he was not exactly sure of the timing. On the day in question, six or seven young men went to the rectory to watch the football game. RG had one beer. He suffered from migraines and during the game, he came down with one and ended up getting very sick. RG had to get into a pitch black room because his stomach turned. Mr. McGrory asked him if he wanted to go lay down to get away from the noise and he replied that he did. RG remembered going up the stairs and into the bedroom. RG could not recall how long it was between the time he went upstairs and the time when Mr. McGrory asked him how he was doing. RG had a facecloth on his eyes to cool down and listened to his heartbeat to get into the trance to try to sleep and reduce the pain. Mr. McGrory asked RG if he wanted an aspirin for the headache and he replied “yes”. The medication that Mr. McGrory gave him made him very cloudy and gave him a disorienting kind of feeling. RG could not recall how long it was between the time he took the medication and when he felt someone beside him. RG felt like he was being touched and his hand was being moved onto someone else’s private parts. When he was asked if he knew who touched him, he responded he knew it was Mr. McGrory. RG described that he was in a weird state like he was there watching but he was not there and he was not himself. RG was also touched on his groin. He could not recall how long it lasted and he remembered waiting for morning to come to be able to get out of there. His brothers and the others had went home, he was the only one who stayed over at the rectory because of his migraine. In the morning, RG told Mr. McGrory to take him home and the latter drove him home just like it was any other day. RG has been trying for the past 50 years “to get rid of this”. * When RG arrived home, he went through the front door and then directly to his bedroom. Mr. McGrory sat down with RG’s mom for a few minutes and then he left. Due to his mother having so many problems with his dad’s passing, RG did not tell her until the next day. RG felt lost and after he told his mother about what had happened with Mr. McGrory, he felt even more upset because it was just more unnecessarily added onto her plate. * At some point near that time, Mr. McGrory introduced RG to CT who he later married. RG’s family expected Mr. McGrory to perform the wedding ceremony because he was a family friend. Only RG’s mother and CT knew about the sexual assault. If RG asked for another priest to perform the wedding ceremony instead of Mr. McGrory, he thought all of the others would want to know why he did not want him to do so. He did not know what to do. RG thought that he just had to get over it and move on. He tried a few things and nothing worked. * At one point, years later, the incident with Mr. McGrory affected him so much on a daily basis that he did not know what to do and he decided to go see the Archbishop to disclose that Mr. McGrory had sexually assaulted him. He thought that he was the only one at the time. RG wanted to ensure that this did not happen to anyone else and he wanted to get some closure. He was told by the church that Mr. McGrory was going to be removed. RG ended up by settling with the church and signed an agreement that he would not talk about it further. He had faith in the Archbishop and it was a tough position to be in but he signed the agreement because he just wanted it to be over. Afterwards, when he realized what the gag order meant, RG began writing to the church administration to get another meeting because he wanted to tell them that he had a real problem with the gag order and that it was worse than the offence itself. * At a certain point in 2016, RG was driving when he heard a news story about Mr. McGrory on CRFA. When he heard Mr. McGrory’s name, “it killed me”. He had been told by the Archbishop that Mr. McGrory was no longer a priest. This had been a lie. “I am a little guy…fighting the catholic church…I had no idea what to do, I was completely lost.” RG was infuriated about the news story to a point that he felt he had to take it upon himself to do something. He did not want this to happen to anyone else. This led to him disclosing the sexual assault to the police. * RG thinks about this incident every day when he starts off his day. [9] I summarize Det. Cashen’s evidence as follows: * Det. Cashen is currently retired from the OPS. He was a member of the OPS for just over 30 years. * Det. Cashen was a member of the Sexual Assault and Child Abuse division which investigates the sexual assault and predatory abuse of children and missing children. He was assigned to investigate the sexual assault complaints against Mr. McGrory. * Det. Cashen first interviewed JB and confirmed with him that he wanted to pursue the action against Mr. McGrory. The information that he received led him to contact Mr. McGrory to discuss the potential charges against him. He must have left Mr. McGrory a message. On Friday, October 21, 2016, he received a call from Mr. Doyle, a civil lawyer in Toronto who advised him that Mr. McGrory had received his message and he was wondering how to proceed. He advised Mr. Doyle that he would have to issue a suspect promise to appear regarding the allegations. * On October 25, Det. Cashen received a message from Mr. Carew who advised him that he was going to represent Mr. McGrory on the criminal matters. Det. Cashen called Mr. Carew back and left a message. On November 25, Mr. McGrory was arrested at 9:10. He was cautioned and rights to counsel were provided. Mr. McGrory was then brought down to the cell block to be interviewed by Det. Cashen. The interview was audiotaped and videotaped. * After interviewing Mr. McGrory, Det. Cashen sent him to a show cause and requested s.161 conditions under the Code regarding contact with children, etc. [10] CT’s statement was admitted by both parties for the truth of its content. She stated that she met RB and Mr. McGrory in or around the summer of 1968-1969. Mr. McGrory had established a youth group in Richmond after he had been transferred from the Alta Vista parish in Ottawa. He set up football games between the Alta Vista Youth Group and the Richmond Youth Group. She was invited to join the youth group even though she was not Catholic. After the afternoon’s football game, everyone headed back to the rectory for a party where beer and wine were served. [11] CT and her friend often went to the rectory on weekends to help clean up and tidy it up which included cleaning dishes, dusting and making the beds. They were given wine to drink. [12] CT stated that she had not seen Mr. McGrory or RG for the next two years or so until about 1971 after they had heard that RG’s father had passed away. CT and her friend touched base with RG and his family to pass on their condolences. It was at this time that she started to date RG. The latter was not really interested in spending time with Mr. McGrory and she never knew why. RG did not really discuss it with her. In the fall of 1971, CT and RG became engaged and were married in July 1972. Mr. McGrory and CT’s minister performed a joint wedding ceremony. [13] An edited version of Mr. McGrory’s police statement was entered into evidence. The voluntariness of the statement was admitted by the Defence. After hearing a motion, I excluded certain portions of the police interview. I summarize the relevant parts of Mr. McGrory’s police statement as follows: * Mr. McGrory confirmed that he and Det. Cashen had not discussed the case in the elevator or when they came into the building. He also confirmed that Det. Cashen told him that the charges that could result from this were indecent assault on a male and gross indecency. Mr. McGrory confirmed that he was read the caution that he was not obliged to say anything unless he wished to do so and that he had a right to retain and instruct counsel without delay. He was also advised that if he wanted to talk to Mr. Carew, he could do so. * Mr. McGrory confirmed that he lived in the New Edinburg area and he played football on Saturday mornings. JB played football with them but not very often. * Mr. McGrory clearly remembered JB. He “felt a great compassion for him”. He knew that JB was living with his aunt and he thought that JB was often depressed. * “SC [Det. Cashen]: Did you guys drink together after … WM [Mr. McGrory]: I … I think so. Probably. SC: Okay. WM: That would happen, yeah”. * “SC: Did you have any kind of sexual relations with [JB]? WM: I could have had, yeah. I … yeah. But I better … I’m… I’m told not to, yeah”. * “SC: …are you still an acting priest or are you retired now? WM: They are going to laicize me probably…it’s a stupid name for defrocking”. * “SC: you’ve already mentioned that it could’ve happened. WM: Yeah. SC: You’re just not … were you … would you have been under the influence of alcohol at the time or you just don’t remember? WM: Um, I guess so. I don’t know. I … yes. Um, yeah, I’ll be … I’ll … I’ll certainly listen to your advice and, uh, talk it over”. ## Position of the Parties ### Crown [14] The Crown argued that the two complainants were both credible and reliable. They gave their evidence in a straight forward manner. The Crown submitted that RG had issues with the timing of the incident with Mr. McGrory, however, it was not material to the charges in question. The fact that he had made an earlier complaint to the church with regards to Mr. McGrory in no way diminished his credibility or the reliability of his evidence. The Crown submitted that it has met its burden and proven beyond a reasonable doubt the charges listed against Mr. McGrory in the indictment. Lastly, the Crown advised that should this court find Mr. McGrory guilty for both indecent assault and gross indecency, as per the Kienapple principle, the court should stay the charges of gross indecency and only register convictions for the indecent assaults. ### The Defence [15] The Defence submitted that the two complainants were not credible. There were many inconsistencies in their evidence. Due to the historical nature of this case, the Defence asked this court to consider the absence of corroborative evidence. The Defence argued that inconsistencies could not be explained away by the passage of time. Consequently, the Crown has not met its burden and proven its case beyond a reasonable doubt. Mr. McGrory should be acquitted of all charges. ## Analysis [16] In our court system, an accused person is presumed innocent until proven guilty. The Crown bears the burden to prove the criminal offence charged beyond a reasonable doubt. If a judge has a reasonable doubt about whether or not the accused committed a criminal offence, the accused must be acquitted. [17] I will begin by citing the relevant sections of the Code that were in effect during the dates listed in the charges. Section 148 of the Code, S.C. 1953-1954, c. 51, applied for the period from April 1, 1955 to July 14, 1971. This section provided as follows: “Every male person who assaults another person with intent to commit buggery or who indecently assaults another male person is guilty of an indictable offence and is liable to imprisonment for ten years and to be whipped”. Section 148 was then replaced by s. 156 on July 15, 1971, S.R.C. 1970, c. C-34, and provided as follows: “Every male person who assaults another person with intent to commit buggery or who indecently assaults another male person is guilty of an indictable offence and is liable to imprisonment for ten years and to be whipped”. Sections 148 and 156 are identical. [18] Section 149 of the Code also applied for the period from April 1, 1955 to July 14, 1971. This section provided as follows: “Every one who commits an act of gross indecency with another person is guilty of an indictable offence and is liable to imprisonment for five years”. Section 149 was later replaced with s. 157 on July 15, 1971 and provided as follows: “Every one who commits an act of gross indecency with another person is guilty of an indictable offence and is liable to imprisonment for five years”. Sections 149 and 157 are identical. [19] Effective August 26, 1969, s. 149A(1) was added to the Code ([Criminal Law Amendment Act, 1968-69, S.C. 1968-1969, c. 38, s. 7](https://laws-lois.justice.gc.ca/eng/acts/C-46/)). It provided as follows: 149A. (1) Sections 147 and 149 do not apply to any act committed in private between (a) a husband and his wife, or (b) any two persons, each of whom is twenty-one years or more of age, both of whom consent to the commission of the act. (2) For the purposes of subsection (1), (a) an act shall be deemed not to have been committed in private if it is committed in a public place, or if more than two persons take part or are present; and (b) a person shall be deemed not to consent to the commission of an act (i) if the consent is extorted by force, threats or fear of bodily harm or is obtained by false and fraudulent misrepresentations as to the nature and quality of the act, or (ii) if that person is, and the other party to the commission of the act knows or has good reason to believe that that person is feeble-minded, insane, or an idiot or imbecile. [20] Lastly, there was a special provision regarding corroboration. Subsection 131(1) stated as follows: “[N]o accused shall be convicted of an offence under section 140, 142, 143, 144, 145, 146 or 155 upon the evidence of only one witness unless the evidence of the witness is corroborated in a material particular by evidence that implicates the accused”. [21] I will turn to a review of the applicable case law in this matter. The Saskatchewan Court of Queen’s Bench’s decision in [R. v. Leroux, 2013 SKQB 395](https://www.canlii.org/en/sk/skqb/doc/2013/2013skqb395/2013skqb395.html), 432 Sask. R. 86, is very helpful to assist in the understanding of acts of gross indecency. For the period in question in this matter, the courts considered acts of gross indecency to be acts which were a marked departure from decent conduct and a crime against public morality which included but was not limited to anal intercourse, fellatio, and homosexual acts between two male persons of any age and whether consenting or not (para. 54). The court explained at para. 58: 58 For the complainants 14 years of age and over, if the person is in a position of trust or authority, sexual touching by the person in authority is now the crime of sexual exploitation. The offence of gross indecency has no equivalent in the current [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/C-46/), R.S.C. 1985, c. C-46. As stated earlier, an offence whereby all homosexual acts between consenting adults were made illegal, to amount to a gross indecency the act must have constituted a marked departure from decent conduct and public morality. Consent is no defence. [22] [Leroux](https://www.canlii.org/en/sk/skqb/doc/2013/2013skqb395/2013skqb395.html) (paras. 71-72) also assists by providing the elements of the offence of indecent assault which are as follows: a) the accused is the person who actually committed the offence of indecent assault; b) the offence of indecent assault occurred at the time and place set out in the indictment; c) the accused applied force to the complainant directly or indirectly; d) the accused intentionally applied force to the complainant in circumstances which had the quality of indecency; e) the complainant was under the age of 14 years at the time of the alleged offence or that the complainant was the age of 14 years or older and did not consent to the application of force or did not consent validly due to the accused inducing the complainant to engage in the activity by abusing a position of trust, power, or authority; and f) the complainant is a male person. [23] With respect to the charge of gross indecency, the elements are as follows: a) the accused is the person who actually committed the offence of gross indecency; b) the offence of gross indecency occurred at the time and place set out in the indictment; c) the acts of gross indecency were with the complainant either consensually or otherwise; and d) the acts committed are a marked departure from decent conduct expected of the average Canadian in the circumstances which existed at the time and a crime against public morality which includes but is not limited to anal intercourse, fellatio and other homosexual acts between two male persons of any age, whether consenting or not. [24] The court can accept all, a part, or none of a witness’ evidence. Inconsistencies do not automatically lead the court to dismiss the witness’ evidence. Even if there are inconsistencies in the evidence, the court can accept the witness’ evidence above all reasonable doubt. [25] Credibility and reliability are distinct. In [R. v. Morrissey (1995)](https://www.canlii.org/en/on/onca/doc/1995/1995canlii3498/1995canlii3498.html), 22 O.R. (3d) 514 (C.A.), at para. 33, Doherty J.A. clarified the concept: Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’s sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’s testimony. The accuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness’s veracity, one speaks of the witness’s credibility. When one is concerned with the accuracy of a witness’s testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable. In this case, both the credibility of the complainants and the reliability of their evidence were attacked on cross-examination. [26] The Court of Appeal has determined that the reliability of the evidence is paramount. In [R. v. Norman (1993)](https://www.canlii.org/en/on/onca/doc/1993/1993canlii3387/1993canlii3387.html), 16 O.R. (3d) 295, at para. 47, the court confirmed that the assessment of credibility based on demeanour alone is insufficient in a case where there are so many significant inconsistencies. [27] Moreover, the case law confirms that while demeanor is a relevant factor in a credibility assessment, demeanor alone is a notoriously unreliable predictor of the accuracy of the evidence provided by a witness ([Law Society of Upper Canada v. Neinstein, 2010 ONCA 193](https://www.canlii.org/en/on/onca/doc/2010/2010onca193/2010onca193.html), 99 O.R. (3d) 1, at para. 66). In addition, demeanor alone is insufficient to convict where there are significant inconsistencies and conflicting evidence ([R. v. S. (W.) (1994)](https://www.canlii.org/en/on/onca/doc/1994/1994canlii7208/1994canlii7208.html), 18 O.R. (3d) 509 (C.A.), at para 19). [28] The trial judge may use demeanor evidence in conjunction of his/her assessment of the evidence as a whole ([R. v. Hull](https://www.canlii.org/en/on/onca/doc/2006/2006canlii26572/2006canlii26572.html), [2006] O.J. No. 3177 (C.A.), at para 8, citing [R. v. Boyce](https://www.canlii.org/en/on/onca/doc/2005/2005canlii36440/2005canlii36440.html), [2005] O.J. No. 4313 (C.A.), at para. 3). [29] Lastly with regards to demeanor evidence, in [R. v. R.D., 2016 ONCA 574](https://www.canlii.org/en/on/onca/doc/2016/2016onca574/2016onca574.html), 30 C.R. (7th) 373, at para. 25, the Court of Appeal for Ontario stated that “[d]espite academic and judicial commentary suggesting that demeanor evidence is unreliable, under Canadian jurisprudence it remains relevant to the assessment of a witness’s credibility”. [30] The accused does not have the burden of explaining the complaints against him ([R. v. S.(W.)](https://www.canlii.org/en/on/onca/doc/1994/1994canlii7208/1994canlii7208.html), at para. 26). The accused does not have the burden of showing that the complainant had a motive to fabricate evidence ([R. v. L.L., 2009 ONCA 413](https://www.canlii.org/en/on/onca/doc/2009/2009onca413/2009onca413.html), 96 O.R. (3d) 412, at paras. 48 and 53). Furthermore, the court must not place too much weight on the complainant’s apparent lack of motive to lie ([R. v. S. (W.)](https://www.canlii.org/en/on/onca/doc/1994/1994canlii7208/1994canlii7208.html), at para. 27). [31] In sexual assault trials, there is no assumption that the complainant is telling the truth ([R. v. Nyznik, 2017 ONSC 4392](https://www.canlii.org/en/on/onsc/doc/2017/2017onsc4392/2017onsc4392.html), 40 C.R. (7th) 241, at paras. 15 and 17). [32] The Supreme Court of Canada further reviewed the significance of the complainant’s failure to make a timely complaint in [R. v. D.D., 2000 SCC 43](https://www.canlii.org/en/ca/scc/doc/2000/2000scc43/2000scc43.html), 2 S.C.R. 275, at paras. 63 and 65, Major J. stated as follows: The significance of the complainant’s failure to make a timely complaint must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse: [R. v. M. (P.S.) (1992)](https://www.canlii.org/en/on/onca/doc/1992/1992canlii2785/1992canlii2785.html), 77 C.C.C. (3d) 402 (Ont. C.A.), at pp. 408-9; [R. v. T.E.M. (1996), 1996 ABCA 312](https://www.canlii.org/en/ab/abca/doc/1996/1996abca312/1996abca312.html), 187 A.R. 273 (C.A.). A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant. ## Assessment of the Evidence [33] The main issues in this matter are with regards to credibility and reliability. I begin by assessing the witnesses’ evidence starting with JB’s evidence. JB gave his evidence in a forthright manner. He described how Mr. McGrory played football with the boys. Mr. McGrory used his position as a priest to lure the boys to the rectory and provided him and others with alcohol. In addition, Mr. McGrory became involved in JB’s family. At one point, he even became JB’s guarantor. Lastly, he described that at age fourteen or fifteen years old, Mr. McGrory sexually touched his genitals and performed oral sex on him at the rectory and late at night in his aunt’s home. This continued until he was approximately seventeen years old. JB was clear in his evidence that he did not consent to any sexual activity with Mr. McGrory. At times, JB was frustrated during cross-examination, took long pauses to answer and was teary eyed during his testimony. It was difficult for him to come forward to the court. He had not told anyone in his family about being sexually assaulted by Mr. McGrory until after he reported it to police. [34] JB’s evidence was also corroborated by other evidence such as Mr. McGrory’s own admission in his police statement that he knew JB lived with his aunt in the period of time in question, he drank alcohol with JB and he could have had sexual relations with JB. In addition, RG testified that Mr. McGrory played football with them, provided alcohol afterwards at the rectory and CT’s statement also corroborates this information. There were insignificant inconsistencies in the testimony he gave in court and his earlier statements. Most of these are related to peripheral issues and I cannot discount his evidence. For example, the Defence pointed out to the inconsistency about whether or not JB intended to beat up Mr. McGrory. This information does not assist the court to determine whether or not Mr. McGrory sexually assaulted JB. It does not go to the heart of the issue. [35] The Defence argued what was missing from JB’s criminal record was relevant to this court’s evaluation of his credibility. I find that JB’s criminal record has no bearing on his credibility and the reliability of his evidence. The Defence also put a lot of emphasis on the fact that JB could not clearly state the number of times he was sexually assaulted by Mr. McGrory. I find that JB’s evidence regarding Mr. McGrory touching his genitals and performing oral sex on him between the ages of fourteen or fifteen until approximately seventeen years old is most credible. When I review JB’s evidence as a whole, which is corroborated by external evidence, I accept his evidence. I find him to be a credible and reliable witness. [36] With regards to RG’s evidence, his testimony was very measured and controlled. He provided it in a forthright manner. RG testified that he was very involved in the church youth group and he played football with Mr. McGrory. The latter became very involved with his family after the death of his father, even to the point that he moved in with RG and his family. On the day in question, RG testified that he went to the rectory to watch a football game with the others. There was alcohol provided and he had consumed one beer. RG had a migraine and he went upstairs in a bedroom to lay down. He testified that Mr. McGrory provided him with a medication to help his migraine which made him feel very cloudy and disoriented. While he laid in bed, Mr. McGrory laid next to him and RG felt his hand being moved to the former’s private parts. Mr. McGrory then touched RG’s groin. His evidence regarding Mr. McGrory and the football games, alcohol and the rectory are corroborated by JB’s evidence and CT’s statement. RG had difficulty ascribing a date as to when the sexual assault occurred. In his statement, he originally said that he was maybe either fourteen or fifteen years old. During his testimony in court, he was clear that this would have happened after his father’s death in the summer of 1969 but before he began his relationship with CT. They were engaged in 1971 and married in 1972. According to this information, the sexual assault occurred between 1969 and 1971. Nothing turns on the actual date of occurrence. The fact that he cannot recall exactly when this occurred does not impact RG’s credibility or reliability. [37] The Defence raised the issue regarding RG’s complaint to the Archbishop. The fact that RG went to the church to share his experience, was hopeful that it would act on his information and was told that Mr. McGrory would be removed does not assist the court in determining whether or not Mr. McGrory sexually assaulted RG. The fact that he signed an agreement with the church does not detract from his credibility. RG explained that he signed because he had faith in the Archbishop and he felt like he was in a difficult position. He just wanted it to be over. RG further testified that when he realized what the gag order meant, he began writing to the church administration to get another meeting because he wanted to tell them that he had a real problem with the gag order and that it was worse than the offence itself. When I review RG’s evidence as a whole, which is corroborated by external evidence, I accept his evidence. I find him to be a credible and reliable witness. [38] CT’s statement was admitted by both parties for the truth of its content. Det. Cashen’s testimony simply confirmed that Mr. McGrory voluntarily attended and provided his statement to police. [39] In addition, during the trial, the Crown made an application to adduce similar fact evidence with respect to the counts that Mr. McGrory was charged with. I granted the similar fact application permitting the Crown to provide similar fact evidence since the test in [R v. Handy, 2002 SCC 56](https://www.canlii.org/en/ca/scc/doc/2002/2002scc56/2002scc56.html), [2002] 2 S.C.R. 908, had been met. There are similarities between the sexual assaults against JB and RG. They were both male at the time of the incidents, each complainant was in his mid to late teenage years, each complainant used the bed at the rectory, each complainant was in a diminished state on account of Mr. McGrory providing alcohol and medication; each complainant was touched by Mr. McGrory, who had entered the bedroom unbeknownst to each complainant; and each complainant was touched on his genitals. [40] It is clear that both of the complainants’ were deeply affected by Mr. McGrory’s actions. JB’s testimony about the issue of baptizing his children and RG’s testimony about Mr. McGrory performing his wedding ceremony were very poignant. Both hid what had happened to them from their loved ones for a long period of time. It negatively impacted their lives. [41] Based on my overall assessment of the evidence, I find that Mr. McGrory preyed on the vulnerabilities of these complainants. He used alcohol to groom JB and medication to destabilize RG. Mr. McGrory’s crimes were all the more serious because of his trusted position in the community. He infiltrated their families and used their faith in him to take advantage of the complainants. Mr. McGrory used his position as the parish priest to exploit vulnerable and naive young men for his own sexual satisfaction. ## Conclusion [42] On the basis of the evidence that I accept, I am convinced beyond a reasonable doubt of Mr. McGrory’s guilt with regards to all counts, 1, 2, 4 and 5. I find that Mr. McGrory committed the offences of indecent assault for both JB and RG; they occurred at the times and places set out in the indictment; he applied force to JB and RG directly; he intentionally applied force to both JB and RG in circumstances which had the quality of indecency by touching both of their groins/genitals and performing oral sex on JB; JB and RG did not consent to the application of force; and JB and RG were male persons. [43] In addition, I find that Mr. McGrory committed the offences of gross indecency for both JB and RG; they occurred at the times and places set out in the indictments; JB and RG did not consent; and Mr. McGrory’s acts were a marked departure from decent conduct expected of the average Canadian in the circumstances which existed at the time and a crime against public. [44] Finally, as per the Kienapple principle, the charges of gross indecency are stayed and only the convictions for the indecent assaults are registered. Justice M. O’Bonsawin Released: June 24, 2019

citation: "R. v. McGrory, 2019 ONSC 3776" parties: "Her Majesty the Queen – and – William Barry McGrory" party_moving: "Her Majesty the Queen" party_responding: "William Barry McGrory" court: "Superior Court of Justice" court_abbreviation: "ONSC" jurisdiction: "Ontario" case_type: "trial" date_judgement: "2019-06-24" date_heard: ["2019-04-29", "2019-04-30", "2019-05-21", "2019-05-22"] applicant:

"Her Majesty the Queen" applicant_counsel:
"John Semenoff" respondent:
"William Barry McGrory" respondent_counsel:
"Leonardo Russomanno" judge:
"M. O’Bonsawin" summary: > This criminal trial concerned historical allegations of indecent assault and gross indecency against William Barry McGrory, a former priest, involving two complainants (JB and RG) for acts committed between 1964-1971. The Crown withdrew charges related to a third complainant who had passed away. The court assessed the credibility and reliability of the complainants' evidence, finding them both credible and reliable, supported by the accused's own admissions and similar fact evidence. The court found the accused guilty beyond a reasonable doubt on all remaining counts, emphasizing his abuse of a trusted position. Applying the Kienapple principle, convictions were registered for indecent assault, and the charges of gross indecency were stayed. interesting_citations_summary: > The decision provides a detailed application of principles governing credibility and reliability in historical sexual assault cases, affirming that inconsistencies do not automatically negate evidence and that delayed disclosure does not create an adverse inference. It relies on R. v. Morrissey to differentiate credibility from reliability, R. v. D.D. regarding the significance of delayed complaints, and R. v. Leroux for defining the historical elements of gross indecency and indecent assault. The court also applied the Kienapple principle to stay gross indecency charges where convictions for indecent assault were registered for the same acts, preventing multiple convictions for the same delict. final_judgement: > William Barry McGrory was found guilty beyond a reasonable doubt on all counts of indecent assault and gross indecency for complainants JB and RG. Pursuant to the Kienapple principle, convictions for indecent assault were registered, and the charges of gross indecency were stayed. winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2019 decision_number: 3776 file_number: "CR-17-RA19524" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc3776/2019onsc3776.html" keywords:
Sexual assault
Indecent assault
Gross indecency
Historical allegations
Credibility
Reliability
Criminal Code
Kienapple principle
Abuse of trust
Similar fact evidence areas_of_law:
Criminal Law
Evidence cited_cases: legislation:
- title: "Criminal Code" url: "https://laws-lois.justice.gc.ca/eng/acts/C-46/"
- title: "Criminal Law Amendment Act, 1968-69, S.C. 1968-1969, c. 38, s. 7" case_law:
- title: "R. v. Leroux, 2013 SKQB 395, 432 Sask. R. 86" url: "https://www.canlii.org/en/sk/skqb/doc/2013/2013skqb395/2013skqb395.html"
- title: "R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.)" url: "https://www.canlii.org/en/on/onca/doc/1995/1995canlii3498/1995canlii3498.html"
- title: "R. v. Norman (1993), 16 O.R. (3d) 295" url: "https://www.canlii.org/en/on/onca/doc/1993/1993canlii3387/1993canlii3387.html"
- title: "Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1" url: "https://www.canlii.org/en/on/onca/doc/2010/2010onca193/2010onca193.html"
- title: "R. v. S. (W.) (1994), 18 O.R. (3d) 509 (C.A.)" url: "https://www.canlii.org/en/on/onca/doc/1994/1994canlii7208/1994canlii7208.html"
- title: "R. v. Hull, [2006] O.J. No. 3177 (C.A.)" url: "https://www.canlii.org/en/on/onca/doc/2006/2006canlii26572/2006canlii26572.html"
- title: "R. v. Boyce, [2005] O.J. No. 4313 (C.A.)" url: "https://www.canlii.org/en/on/onca/doc/2005/2005canlii36440/2005canlii36440.html"
- title: "R. v. R.D., 2016 ONCA 574, 30 C.R. (7th) 373" url: "https://www.canlii.org/en/on/onca/doc/2016/2016onca574/2016onca574.html"
- title: "R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412" url: "https://www.canlii.org/en/on/onca/doc/2009/2009onca413/2009onca413.html"
- title: "R. v. Nyznik, 2017 ONSC 4392, 40 C.R. (7th) 241" url: "https://www.canlii.org/en/on/onsc/doc/2017/2017onsc4392/2017onsc4392.html"
- title: "R. v. D.D., 2000 SCC 43, 2 S.C.R. 275" url: "https://www.canlii.org/en/ca/scc/doc/2000/2000scc43/2000scc43.html"
- title: "R. v. M. (P.S.) (1992), 77 C.C.C. (3d) 402 (Ont. C.A.)" url: "https://www.canlii.org/en/on/onca/doc/1992/1992canlii2785/1992canlii2785.html"
- title: "R. v. T.E.M. (1996), 1996 ABCA 312, 187 A.R. 273 (C.A.)" url: "https://www.canlii.org/en/ab/abca/doc/1996/1996abca312/1996abca312.html"
- title: "R v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908" url: "https://www.canlii.org/en/ca/scc/doc/2002/2002scc56/2002scc56.html"

Court File and Parties

COURT FILE NO.: CR-17-RA19524 DATE: 2019/06/24 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen – and – William Barry McGrory

Counsel: John Semenoff for Her Majesty the Queen Leonardo Russomanno for Mr. McGrory

HEARD: April 29, 30, May 21 and May 22, 2019

Reasons for Decision

Pursuant to s. 486.4 of the Criminal Code there is a continuing order in place making it an offence for any person to publish information that might lead to disclosure of the identity of the complainants.

O’Bonsawin J.

Background

[1] This is a historical case which initially consisted of three complainants, JB, GM and RG. They alleged that Mr. McGrory sexually assaulted them when he was a priest from 1964-1971. I use the term “sexually assault” since indecent assault and gross indecency are currently referred to as “sexual assault”.

[2] Mr. McGrory was charged with three counts of indecent assault and three counts of gross indecency. He pled not guilty to six charges.

[3] The issues in this case are whether or not the Crown has proven beyond a reasonable doubt that the sexual assaults occurred. This turns on an assessment by the court of the credibility and reliability of the evidence provided.

[4] At the commencement of the trial, the Crown withdrew counts #3 and 4 because they relate to complainant GM who passed away. In addition, the parties agreed to a section 486.4 Order regarding the non-publication of information that could lead to the identification of the complainants.

[5] The Crown called three witnesses to testify: JB, RG and Detective Cashen. The parties agreed that CT’s evidence could be entered as evidence by way of a statement. CT is RG’s ex-wife. Mr. McGrory did not testify and the Defence did not call any other witnesses.

Evidence

[6] I will review the evidence of the witnesses.

[7] I summarize JB’s evidence as follows:

JB is currently 66 years old. He was born in December 1952. He is an Indigenous man who grew up initially on the Golden Lake reserve. He was the second oldest of a family of five children. He was eight years old when the Children’s Aid Society became involved with his family for a few years. This led to him living back and forth on the reserve and in Ottawa for a period of time.
When JB was about twelve to thirteen years old, his mother moved his family to Ottawa. His mother met a man and the boys did not get along with him. JB and his older brother (he was one year older than JB) moved in with his aunt in the New Edinburg area in Ottawa. JB was about fourteen to fifteen years old at that time.
JB’s aunt’s house had two stories with an addition at back. His aunt, uncle and younger cousins slept in the addition on the first floor and JB and the boys (his brother and two cousins) slept upstairs. JB’s bedroom was in the middle of the two other bedrooms in front of the stairs. He slept alone in his bedroom. Unlike the other bedrooms, his bedroom had a curtain because it used to be his aunt’s sewing room. The front door of the house was never locked.
The summer before he moved in with his aunt, JB played football and lacrosse against guys from Lowertown. These guys knew Mr. McGrory and he played football and hockey with them. This is how JB met Mr. McGrory. When JB first met Mr. McGrory, he liked him because he was a priest and to them, it was like the teacher coming to play with them. After the sporting activities, JB, others and Mr. McGrory would drink “booze, get drunk” and there was craziness.
At first, Mr. McGrory did not know JB’s aunt and uncle. He infiltrated himself into their lives and came over for dinner.
In the early days when JB moved in with his aunt, Mr. McGrory brought the boys to the rectory in Richmond, Ontario (this town is approximately 35 km from Ottawa). He made the boys do chores like cutting the grass and then gave them beer. Mr. McGrory also drank with the boys. He used the excuse that he was too drunk to drive them back to Ottawa and therefore the boys slept in the bedrooms upstairs at the rectory.
JB described alcohol as his vice when he was young. He liked the buzz.
The first time that Mr. McGrory sexually assaulted JB, he had passed out drunk in a bedroom upstairs in the rectory. Mr. McGrory came into the bedroom and then JB felt him touching his genitals. Mr. McGrory then performed oral sex on JB. The latter described feeling scared. There were other people sleeping with them in other rooms. JB thought: “what if they came, what if they knew?” He was scared that he would not get a good name if others came in and found out. The next day, Mr. McGrory drove the boys back to Ottawa. JB could not recall the exact number of times that Mr. McGrory sexually assaulted him at the rectory. He estimated more than five times. The sexual assaults were of the same nature as the first time.
Mr. McGrory also sexually assaulted JB in his aunt’s house in Ottawa. Mr. McGrory did not have a house key and since the front door was never locked, he used to come up the front stairs to get into JB’s room late after 1:00 a.m. When JB was sleeping, Mr. McGrory came into his bedroom and performed oral sex on him. JB was unable to pinpoint how many times the sexual assaults occurred in his aunt’s home but it was quite a few times.
JB never consented to any sexual activity with Mr. McGrory. When it started to happen, JB told himself: “Oh my God, I should have said something at the start.” He first told someone about the sexual assaults when he was injured at work and saw a therapist. JB later told his older brother who has since passed away. He only told his wife about the sexual assaults after he went to the police.
Mr. McGrory stopped sexually assaulting JB after he met a girl. They had a baby when JB was seventeen years old and were married when he was eighteen years old. Afterwards, JB did not want Mr. McGrory to be around his kids. His wife wanted to baptize their children and JB refused because he did not want Mr. McGrory, who had sexually assaulted him, to baptize his children.
Once while JB and Mr. McGrory were in the car on the Queensway, the O.P.P. pulled them over. At that time, JB was drinking a beer from the case that Mr. McGrory had gotten from a bootlegger. JB was mad and hit Mr. McGrory who then hit him. JB broke Mr. McGrory’s tooth.
On another occasion, JB was afraid, wanted to leave the rectory and took Mr. McGrory’s car to return to Ottawa. Just before he left, JB and Mr. McGrory had a fight because the latter was trying to stop JB from leaving. He ended up wrecking Mr. McGrory’s car.
When JB got into trouble, Mr. McGrory signed as his guarantor. After Mr. McGrory became his guarantor, JB saw him more. For example, Mr. McGrory would visit JB more at his aunt’s house and say he was checking to see if he was at home. In his aunt’s home, JB was scared to say anything because he would get kicked out. Who would believe JB over Mr. McGrory?
JB was first charged with robbery with violence for “rolling gay people in the park”. They were in the bushes and JB and his friends went in and took their money. He recalls that he was sixteen years old at the time because he was too old to go to reform school and he was sent to jail. JB was cross-examined about his criminal record which did not include a charge for robbery with violence. Although it was not listed on his criminal record, JB was adamant he had been charged and served a jail sentence. He responded: “[d]o you think that I would tell you I went to jail for nothing? You got the wrong paper. I was charged for robbing and rolling it was in the paper at that day”.
There was confusion in JB’s testimony about an incident where he and a guy decided to go to the rectory to beat up Mr. McGrory. He told the police in his statement that he beat up Mr. McGrory and in court he testified that he did not beat him up, when they arrived, they drank beer and decided not to beat him up.
In addition to driving JB back and forth to the rectory, Mr. McGrory also drove him to see his father in Cleveland, Ohio. His father had either been shot or stabbed.
JB tried to bury the thoughts of Mr. McGrory sexually assaulted him. JB hid how Mr. McGrory had sexually assaulted him for a long time. At one point in his life after he had grandkids, he could not bury it anymore. JB read a newspaper article about Mr. McGrory which got into his head and would not leave. He felt that he had to tell someone about what had happened with Mr. McGrory. In August-September 2016, JB contacted the Ottawa Police Service (“OPS”).

[8] I summarize RG’s evidence as follows:

RG is currently 69 years old, he was born in April 1950.
At some point in the 1960s, he was an altar boy and was very involved in the Immaculate Heart of Mary church. RG met Mr. McGrory when he was transferred to RG’s church. He had received permission to start a youth group and Mr. McGrory was very good with the youth because he listened and he was up to date. They also played football once in a while where they would try to get something going between churches to get the youth involved.
RG’s family was very involved with the church. The priest was considered a very good friend of his family. RG fixed things at the church and he was very good friends with father Reynolds, the priest prior to Mr. McGrory. The latter became a good friend of RG’s family and he also considered him to be a good friend. His father later passed away in probably August 1969 and it became a tough time. His family consisted of five boys and his mother had cancer. RG relied more on church during that time. RG wanted to be a priest after his father had died. Mr. McGrory moved in with RG’s family and helped him after his father’s death. RG considered him a very good friend and he trusted him with all that he had.
When Mr. McGrory changed parishes and moved to Richmond, Ontario, there were occasions when RG and his brother drove up to visit Mr. McGrory. RG’s best guess of when the incident at the rectory occurred was possibly within a year of his father’s death but he was not exactly sure of the timing. On the day in question, six or seven young men went to the rectory to watch the football game. RG had one beer. He suffered from migraines and during the game, he came down with one and ended up getting very sick. RG had to get into a pitch black room because his stomach turned. Mr. McGrory asked him if he wanted to go lay down to get away from the noise and he replied that he did. RG remembered going up the stairs and into the bedroom. RG could not recall how long it was between the time he went upstairs and the time when Mr. McGrory asked him how he was doing. RG had a facecloth on his eyes to cool down and listened to his heartbeat to get into the trance to try to sleep and reduce the pain. Mr. McGrory asked RG if he wanted an aspirin for the headache and he replied “yes”. The medication that Mr. McGrory gave him made him very cloudy and gave him a disorienting kind of feeling. RG could not recall how long it was between the time he took the medication and when he felt someone beside him. RG felt like he was being touched and his hand was being moved onto someone else’s private parts. When he was asked if he knew who touched him, he responded he knew it was Mr. McGrory. RG described that he was in a weird state like he was there watching but he was not there and he was not himself. RG was also touched on his groin. He could not recall how long it lasted and he remembered waiting for morning to come to be able to get out of there. His brothers and the others had went home, he was the only one who stayed over at the rectory because of his migraine. In the morning, RG told Mr. McGrory to take him home and the latter drove him home just like it was any other day. RG has been trying for the past 50 years “to get rid of this”.
When RG arrived home, he went through the front door and then directly to his bedroom. Mr. McGrory sat down with RG’s mom for a few minutes and then he left. Due to his mother having so many problems with his dad’s passing, RG did not tell her until the next day. RG felt lost and after he told his mother about what had happened with Mr. McGrory, he felt even more upset because it was just more unnecessarily added onto her plate.
At some point near that time, Mr. McGrory introduced RG to CT who he later married. RG’s family expected Mr. McGrory to perform the wedding ceremony because he was a family friend. Only RG’s mother and CT knew about the sexual assault. If RG asked for another priest to perform the wedding ceremony instead of Mr. McGrory, he thought all of the others would want to know why he did not want him to do so. He did not know what to do. RG thought that he just had to get over it and move on. He tried a few things and nothing worked.
At one point, years later, the incident with Mr. McGrory affected him so much on a daily basis that he did not know what to do and he decided to go see the Archbishop to disclose that Mr. McGrory had sexually assaulted him. He thought that he was the only one at the time. RG wanted to ensure that this did not happen to anyone else and he wanted to get some closure. He was told by the church that Mr. McGrory was going to be removed. RG ended up by settling with the church and signed an agreement that he would not talk about it further. He had faith in the Archbishop and it was a tough position to be in but he signed the agreement because he just wanted it to be over. Afterwards, when he realized what the gag order meant, RG began writing to the church administration to get another meeting because he wanted to tell them that he had a real problem with the gag order and that it was worse than the offence itself.
At a certain point in 2016, RG was driving when he heard a news story about Mr. McGrory on CRFA. When he heard Mr. McGrory’s name, “it killed me”. He had been told by the Archbishop that Mr. McGrory was no longer a priest. This had been a lie. “I am a little guy…fighting the catholic church…I had no idea what to do, I was completely lost.” RG was infuriated about the news story to a point that he felt he had to take it upon himself to do something. He did not want this to happen to anyone else. This led to him disclosing the sexual assault to the police.
RG thinks about this incident every day when he starts off his day.

[9] I summarize Det. Cashen’s evidence as follows:

Det. Cashen is currently retired from the OPS. He was a member of the OPS for just over 30 years.
Det. Cashen was a member of the Sexual Assault and Child Abuse division which investigates the sexual assault and predatory abuse of children and missing children. He was assigned to investigate the sexual assault complaints against Mr. McGrory.
Det. Cashen first interviewed JB and confirmed with him that he wanted to pursue the action against Mr. McGrory. The information that he received led him to contact Mr. McGrory to discuss the potential charges against him. He must have left Mr. McGrory a message. On Friday, October 21, 2016, he received a call from Mr. Doyle, a civil lawyer in Toronto who advised him that Mr. McGrory had received his message and he was wondering how to proceed. He advised Mr. Doyle that he would have to issue a suspect promise to appear regarding the allegations.
On October 25, Det. Cashen received a message from Mr. Carew who advised him that he was going to represent Mr. McGrory on the criminal matters. Det. Cashen called Mr. Carew back and left a message. On November 25, Mr. McGrory was arrested at 9:10. He was cautioned and rights to counsel were provided. Mr. McGrory was then brought down to the cell block to be interviewed by Det. Cashen. The interview was audiotaped and videotaped.
After interviewing Mr. McGrory, Det. Cashen sent him to a show cause and requested s.161 conditions under the Code regarding contact with children, etc.

[10] CT’s statement was admitted by both parties for the truth of its content. She stated that she met RB and Mr. McGrory in or around the summer of 1968-1969. Mr. McGrory had established a youth group in Richmond after he had been transferred from the Alta Vista parish in Ottawa. He set up football games between the Alta Vista Youth Group and the Richmond Youth Group. She was invited to join the youth group even though she was not Catholic. After the afternoon’s football game, everyone headed back to the rectory for a party where beer and wine were served.

[11] CT and her friend often went to the rectory on weekends to help clean up and tidy it up which included cleaning dishes, dusting and making the beds. They were given wine to drink.

[12] CT stated that she had not seen Mr. McGrory or RG for the next two years or so until about 1971 after they had heard that RG’s father had passed away. CT and her friend touched base with RG and his family to pass on their condolences. It was at this time that she started to date RG. The latter was not really interested in spending time with Mr. McGrory and she never knew why. RG did not really discuss it with her. In the fall of 1971, CT and RG became engaged and were married in July 1972. Mr. McGrory and CT’s minister performed a joint wedding ceremony.

[13] An edited version of Mr. McGrory’s police statement was entered into evidence. The voluntariness of the statement was admitted by the Defence. After hearing a motion, I excluded certain portions of the police interview. I summarize the relevant parts of Mr. McGrory’s police statement as follows:

Mr. McGrory confirmed that he and Det. Cashen had not discussed the case in the elevator or when they came into the building. He also confirmed that Det. Cashen told him that the charges that could result from this were indecent assault on a male and gross indecency. Mr. McGrory confirmed that he was read the caution that he was not obliged to say anything unless he wished to do so and that he had a right to retain and instruct counsel without delay. He was also advised that if he wanted to talk to Mr. Carew, he could do so.
Mr. McGrory confirmed that he lived in the New Edinburg area and he played football on Saturday mornings. JB played football with them but not very often.
Mr. McGrory clearly remembered JB. He “felt a great compassion for him”. He knew that JB was living with his aunt and he thought that JB was often depressed.
“SC [Det. Cashen]: Did you guys drink together after … WM [Mr. McGrory]: I … I think so. Probably. SC: Okay. WM: That would happen, yeah”.
“SC: Did you have any kind of sexual relations with [JB]? WM: I could have had, yeah. I … yeah. But I better … I’m… I’m told not to, yeah”.
“SC: …are you still an acting priest or are you retired now? WM: They are going to laicize me probably…it’s a stupid name for defrocking”.
“SC: you’ve already mentioned that it could’ve happened. WM: Yeah. SC: You’re just not … were you … would you have been under the influence of alcohol at the time or you just don’t remember? WM: Um, I guess so. I don’t know. I … yes. Um, yeah, I’ll be … I’ll … I’ll certainly listen to your advice and, uh, talk it over”.

Position of the Parties

Crown

[14] The Crown argued that the two complainants were both credible and reliable. They gave their evidence in a straight forward manner. The Crown submitted that RG had issues with the timing of the incident with Mr. McGrory, however, it was not material to the charges in question. The fact that he had made an earlier complaint to the church with regards to Mr. McGrory in no way diminished his credibility or the reliability of his evidence. The Crown submitted that it has met its burden and proven beyond a reasonable doubt the charges listed against Mr. McGrory in the indictment. Lastly, the Crown advised that should this court find Mr. McGrory guilty for both indecent assault and gross indecency, as per the Kienapple principle, the court should stay the charges of gross indecency and only register convictions for the indecent assaults.

The Defence

[15] The Defence submitted that the two complainants were not credible. There were many inconsistencies in their evidence. Due to the historical nature of this case, the Defence asked this court to consider the absence of corroborative evidence. The Defence argued that inconsistencies could not be explained away by the passage of time. Consequently, the Crown has not met its burden and proven its case beyond a reasonable doubt. Mr. McGrory should be acquitted of all charges.

Analysis

[16] In our court system, an accused person is presumed innocent until proven guilty. The Crown bears the burden to prove the criminal offence charged beyond a reasonable doubt. If a judge has a reasonable doubt about whether or not the accused committed a criminal offence, the accused must be acquitted.

[17] I will begin by citing the relevant sections of the Code that were in effect during the dates listed in the charges. Section 148 of the Code, S.C. 1953-1954, c. 51, applied for the period from April 1, 1955 to July 14, 1971. This section provided as follows: “Every male person who assaults another person with intent to commit buggery or who indecently assaults another male person is guilty of an indictable offence and is liable to imprisonment for ten years and to be whipped”. Section 148 was then replaced by s. 156 on July 15, 1971, S.R.C. 1970, c. C-34, and provided as follows: “Every male person who assaults another person with intent to commit buggery or who indecently assaults another male person is guilty of an indictable offence and is liable to imprisonment for ten years and to be whipped”. Sections 148 and 156 are identical.

[18] Section 149 of the Code also applied for the period from April 1, 1955 to July 14, 1971. This section provided as follows: “Every one who commits an act of gross indecency with another person is guilty of an indictable offence and is liable to imprisonment for five years”. Section 149 was later replaced with s. 157 on July 15, 1971 and provided as follows: “Every one who commits an act of gross indecency with another person is guilty of an indictable offence and is liable to imprisonment for five years”. Sections 149 and 157 are identical.

[19] Effective August 26, 1969, s. 149A(1) was added to the Code (Criminal Law Amendment Act, 1968-69, S.C. 1968-1969, c. 38, s. 7). It provided as follows:

149A. (1) Sections 147 and 149 do not apply to any act committed in private between

(a) a husband and his wife, or

(b) any two persons, each of whom is twenty-one years or more of age,

both of whom consent to the commission of the act.

(2) For the purposes of subsection (1),

(a) an act shall be deemed not to have been committed in private if it is committed in a public place, or if more than two persons take part or are present; and

(b) a person shall be deemed not to consent to the commission of an act

(i) if the consent is extorted by force, threats or fear of bodily harm or is obtained by false and fraudulent misrepresentations as to the nature and quality of the act, or

(ii) if that person is, and the other party to the commission of the act knows or has good reason to believe that that person is feeble-minded, insane, or an idiot or imbecile.

[20] Lastly, there was a special provision regarding corroboration. Subsection 131(1) stated as follows: “[N]o accused shall be convicted of an offence under section 140, 142, 143, 144, 145, 146 or 155 upon the evidence of only one witness unless the evidence of the witness is corroborated in a material particular by evidence that implicates the accused”.

[21] I will turn to a review of the applicable case law in this matter. The Saskatchewan Court of Queen’s Bench’s decision in R. v. Leroux, 2013 SKQB 395, 432 Sask. R. 86, is very helpful to assist in the understanding of acts of gross indecency. For the period in question in this matter, the courts considered acts of gross indecency to be acts which were a marked departure from decent conduct and a crime against public morality which included but was not limited to anal intercourse, fellatio, and homosexual acts between two male persons of any age and whether consenting or not (para. 54). The court explained at para. 58:

58 For the complainants 14 years of age and over, if the person is in a position of trust or authority, sexual touching by the person in authority is now the crime of sexual exploitation. The offence of gross indecency has no equivalent in the current Criminal Code, R.S.C. 1985, c. C-46. As stated earlier, an offence whereby all homosexual acts between consenting adults were made illegal, to amount to a gross indecency the act must have constituted a marked departure from decent conduct and public morality. Consent is no defence.

[22] Leroux (paras. 71-72) also assists by providing the elements of the offence of indecent assault which are as follows:

a) the accused is the person who actually committed the offence of indecent assault;

b) the offence of indecent assault occurred at the time and place set out in the indictment;

c) the accused applied force to the complainant directly or indirectly;

d) the accused intentionally applied force to the complainant in circumstances which had the quality of indecency;

e) the complainant was under the age of 14 years at the time of the alleged offence or that the complainant was the age of 14 years or older and did not consent to the application of force or did not consent validly due to the accused inducing the complainant to engage in the activity by abusing a position of trust, power, or authority; and

f) the complainant is a male person.

[23] With respect to the charge of gross indecency, the elements are as follows:

a) the accused is the person who actually committed the offence of gross indecency;

b) the offence of gross indecency occurred at the time and place set out in the indictment;

c) the acts of gross indecency were with the complainant either consensually or otherwise; and

d) the acts committed are a marked departure from decent conduct expected of the average Canadian in the circumstances which existed at the time and a crime against public morality which includes but is not limited to anal intercourse, fellatio and other homosexual acts between two male persons of any age, whether consenting or not.

[24] The court can accept all, a part, or none of a witness’ evidence. Inconsistencies do not automatically lead the court to dismiss the witness’ evidence. Even if there are inconsistencies in the evidence, the court can accept the witness’ evidence above all reasonable doubt.

[25] Credibility and reliability are distinct. In R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at para. 33, Doherty J.A. clarified the concept:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’s sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’s testimony. The accuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness’s veracity, one speaks of the witness’s credibility. When one is concerned with the accuracy of a witness’s testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable. In this case, both the credibility of the complainants and the reliability of their evidence were attacked on cross-examination.

[26] The Court of Appeal has determined that the reliability of the evidence is paramount. In R. v. Norman (1993), 16 O.R. (3d) 295, at para. 47, the court confirmed that the assessment of credibility based on demeanour alone is insufficient in a case where there are so many significant inconsistencies.

[27] Moreover, the case law confirms that while demeanor is a relevant factor in a credibility assessment, demeanor alone is a notoriously unreliable predictor of the accuracy of the evidence provided by a witness (Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66). In addition, demeanor alone is insufficient to convict where there are significant inconsistencies and conflicting evidence (R. v. S. (W.) (1994), 18 O.R. (3d) 509 (C.A.), at para 19).

[28] The trial judge may use demeanor evidence in conjunction of his/her assessment of the evidence as a whole (R. v. Hull, [2006] O.J. No. 3177 (C.A.), at para 8, citing R. v. Boyce, [2005] O.J. No. 4313 (C.A.), at para. 3).

[29] Lastly with regards to demeanor evidence, in R. v. R.D., 2016 ONCA 574, 30 C.R. (7th) 373, at para. 25, the Court of Appeal for Ontario stated that “[d]espite academic and judicial commentary suggesting that demeanor evidence is unreliable, under Canadian jurisprudence it remains relevant to the assessment of a witness’s credibility”.

[30] The accused does not have the burden of explaining the complaints against him (R. v. S.(W.), at para. 26). The accused does not have the burden of showing that the complainant had a motive to fabricate evidence (R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, at paras. 48 and 53). Furthermore, the court must not place too much weight on the complainant’s apparent lack of motive to lie (R. v. S. (W.), at para. 27).

[31] In sexual assault trials, there is no assumption that the complainant is telling the truth (R. v. Nyznik, 2017 ONSC 4392, 40 C.R. (7th) 241, at paras. 15 and 17).

[32] The Supreme Court of Canada further reviewed the significance of the complainant’s failure to make a timely complaint in R. v. D.D., 2000 SCC 43, 2 S.C.R. 275, at paras. 63 and 65, Major J. stated as follows:

The significance of the complainant’s failure to make a timely complaint must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse: R. v. M. (P.S.) (1992), 77 C.C.C. (3d) 402 (Ont. C.A.), at pp. 408-9; R. v. T.E.M. (1996), 1996 ABCA 312, 187 A.R. 273 (C.A.).

A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

Assessment of the Evidence

[33] The main issues in this matter are with regards to credibility and reliability. I begin by assessing the witnesses’ evidence starting with JB’s evidence. JB gave his evidence in a forthright manner. He described how Mr. McGrory played football with the boys. Mr. McGrory used his position as a priest to lure the boys to the rectory and provided him and others with alcohol. In addition, Mr. McGrory became involved in JB’s family. At one point, he even became JB’s guarantor. Lastly, he described that at age fourteen or fifteen years old, Mr. McGrory sexually touched his genitals and performed oral sex on him at the rectory and late at night in his aunt’s home. This continued until he was approximately seventeen years old. JB was clear in his evidence that he did not consent to any sexual activity with Mr. McGrory. At times, JB was frustrated during cross-examination, took long pauses to answer and was teary eyed during his testimony. It was difficult for him to come forward to the court. He had not told anyone in his family about being sexually assaulted by Mr. McGrory until after he reported it to police.

[34] JB’s evidence was also corroborated by other evidence such as Mr. McGrory’s own admission in his police statement that he knew JB lived with his aunt in the period of time in question, he drank alcohol with JB and he could have had sexual relations with JB. In addition, RG testified that Mr. McGrory played football with them, provided alcohol afterwards at the rectory and CT’s statement also corroborates this information. There were insignificant inconsistencies in the testimony he gave in court and his earlier statements. Most of these are related to peripheral issues and I cannot discount his evidence. For example, the Defence pointed out to the inconsistency about whether or not JB intended to beat up Mr. McGrory. This information does not assist the court to determine whether or not Mr. McGrory sexually assaulted JB. It does not go to the heart of the issue.

[35] The Defence argued what was missing from JB’s criminal record was relevant to this court’s evaluation of his credibility. I find that JB’s criminal record has no bearing on his credibility and the reliability of his evidence. The Defence also put a lot of emphasis on the fact that JB could not clearly state the number of times he was sexually assaulted by Mr. McGrory. I find that JB’s evidence regarding Mr. McGrory touching his genitals and performing oral sex on him between the ages of fourteen or fifteen until approximately seventeen years old is most credible. When I review JB’s evidence as a whole, which is corroborated by external evidence, I accept his evidence. I find him to be a credible and reliable witness.

[36] With regards to RG’s evidence, his testimony was very measured and controlled. He provided it in a forthright manner. RG testified that he was very involved in the church youth group and he played football with Mr. McGrory. The latter became very involved with his family after the death of his father, even to the point that he moved in with RG and his family. On the day in question, RG testified that he went to the rectory to watch a football game with the others. There was alcohol provided and he had consumed one beer. RG had a migraine and he went upstairs in a bedroom to lay down. He testified that Mr. McGrory provided him with a medication to help his migraine which made him feel very cloudy and disoriented. While he laid in bed, Mr. McGrory laid next to him and RG felt his hand being moved to the former’s private parts. Mr. McGrory then touched RG’s groin. His evidence regarding Mr. McGrory and the football games, alcohol and the rectory are corroborated by JB’s evidence and CT’s statement. RG had difficulty ascribing a date as to when the sexual assault occurred. In his statement, he originally said that he was maybe either fourteen or fifteen years old. During his testimony in court, he was clear that this would have happened after his father’s death in the summer of 1969 but before he began his relationship with CT. They were engaged in 1971 and married in 1972. According to this information, the sexual assault occurred between 1969 and 1971. Nothing turns on the actual date of occurrence. The fact that he cannot recall exactly when this occurred does not impact RG’s credibility or reliability.

[37] The Defence raised the issue regarding RG’s complaint to the Archbishop. The fact that RG went to the church to share his experience, was hopeful that it would act on his information and was told that Mr. McGrory would be removed does not assist the court in determining whether or not Mr. McGrory sexually assaulted RG. The fact that he signed an agreement with the church does not detract from his credibility. RG explained that he signed because he had faith in the Archbishop and he felt like he was in a difficult position. He just wanted it to be over. RG further testified that when he realized what the gag order meant, he began writing to the church administration to get another meeting because he wanted to tell them that he had a real problem with the gag order and that it was worse than the offence itself. When I review RG’s evidence as a whole, which is corroborated by external evidence, I accept his evidence. I find him to be a credible and reliable witness.

[38] CT’s statement was admitted by both parties for the truth of its content. Det. Cashen’s testimony simply confirmed that Mr. McGrory voluntarily attended and provided his statement to police.

[39] In addition, during the trial, the Crown made an application to adduce similar fact evidence with respect to the counts that Mr. McGrory was charged with. I granted the similar fact application permitting the Crown to provide similar fact evidence since the test in R v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, had been met. There are similarities between the sexual assaults against JB and RG. They were both male at the time of the incidents, each complainant was in his mid to late teenage years, each complainant used the bed at the rectory, each complainant was in a diminished state on account of Mr. McGrory providing alcohol and medication; each complainant was touched by Mr. McGrory, who had entered the bedroom unbeknownst to each complainant; and each complainant was touched on his genitals.

[40] It is clear that both of the complainants’ were deeply affected by Mr. McGrory’s actions. JB’s testimony about the issue of baptizing his children and RG’s testimony about Mr. McGrory performing his wedding ceremony were very poignant. Both hid what had happened to them from their loved ones for a long period of time. It negatively impacted their lives.

[41] Based on my overall assessment of the evidence, I find that Mr. McGrory preyed on the vulnerabilities of these complainants. He used alcohol to groom JB and medication to destabilize RG. Mr. McGrory’s crimes were all the more serious because of his trusted position in the community. He infiltrated their families and used their faith in him to take advantage of the complainants. Mr. McGrory used his position as the parish priest to exploit vulnerable and naive young men for his own sexual satisfaction.

Conclusion

[42] On the basis of the evidence that I accept, I am convinced beyond a reasonable doubt of Mr. McGrory’s guilt with regards to all counts, 1, 2, 4 and 5. I find that Mr. McGrory committed the offences of indecent assault for both JB and RG; they occurred at the times and places set out in the indictment; he applied force to JB and RG directly; he intentionally applied force to both JB and RG in circumstances which had the quality of indecency by touching both of their groins/genitals and performing oral sex on JB; JB and RG did not consent to the application of force; and JB and RG were male persons.

[43] In addition, I find that Mr. McGrory committed the offences of gross indecency for both JB and RG; they occurred at the times and places set out in the indictments; JB and RG did not consent; and Mr. McGrory’s acts were a marked departure from decent conduct expected of the average Canadian in the circumstances which existed at the time and a crime against public.

[44] Finally, as per the Kienapple principle, the charges of gross indecency are stayed and only the convictions for the indecent assaults are registered.

Justice M. O’Bonsawin

Released: June 24, 2019