r v. BRIAN BOUCHER, 2019 QCCQ 15416

JC00T9 R. c. Boucher 2019 QCCQ 15416 COURT OF QUEBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL « Criminal and Penal Division » N° : 500-01-149312-172 DATE : January 21, 2019 _____________________________________________________________________ BEFORE THE HONORABLE JUSTICE ONORABLE PATR PATRICIA COMPAGNONE, J.C.Q. _____________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

BRIAN BOUCHER Accused _____________________________________________________________________ DECISION [1] This decision is subject to a publication ban (486.4(1) Cr.C.). _____________________________________________________________________ [ 1 ] The accused is on trial for having sexually assaulted a young boy, X, while acting as his parish priest, and confirmation sponsor, between 2008 and 2011. [ 2 ] The crown adduced similar fact evidence, in relation to sexual assaults allegedly committed by the accused, on another young boy he knew while acting as his parish priest, Y, years before, between 1995 and 1999. [ 3 ] The accused denies all allegations made against him.

He contends that X fabricated his claim in 2015, as retaliation for telling X’s mother, in 2011, that he had engaged in sexual activity with a girl on church premises in 2011. THE ISSUE [ 4 ] Has the Crown proven, beyond a reasonable doubt, that the accused sexually assaulted X? CONTEXT [ 5 ] The complainant, X, gets acquainted, at a young age, with the accused, through his parent’s involvement in their religious community. More precisely, they are involved in catechism at their church, in the Town of Mont-Royal.

The accused is their parish priest. [ 6 ] The accused is a close friend of X’s family, is regularly invited for supper at their home and is considered trustworthy. [ 7 ] At the end of grade 6, X, 12 years of age, chooses the accused as a confirmation sponsor. [ 8 ] Soon after that, the accused starts asking X questions of a sexual nature. He encourages X to answer him, and confide in him, so that he may help him.

Some of the questions concern masturbation and ejaculation. [ 9 ] In the fall of his Secondary 1, when X is 12 or 13 years old, the accused sexually touches him for the first time. [ 10 ] While driving X, and a friend, back home after a reconciliation ceremony, the accused learns of a «grinding» incident between X and a girl at a high school dance. He drives X to church, brings him in the rectory and threatens to tell X’s parents about the incident. He tells X to trust him and that he has to be completely naked to be completely truthful.

Fearing the accused, X obeys and undresses. [ 11 ] The accused proceeds to touch him on his genitals and on the rest of his body, also asking him to sit on his lap. [ 12 ] Over the following three years, sexual touching by the accused on X continues and progresses. [ 13 ] The accused performs oral sex on X and asks him to perform oral sex on him as well. [ 14 ] On one occasion, the accused asks X to lick his anus.

[ 15 ] On three different occasions, during the last year of the abuse, the accused sodomizes X. [ 16 ] These sexual encounters occur during the school year, in the church rectory, while X is present at church, on Tuesdays and during the weekends, as he is an altar boy for Sunday Mass. [ 17 ] They also occur during the summer, while X works as a volunteer at church. [ 18 ] The three episodes of sodomy occur in the accused’s bedroom, in the rectory, after having him take a shower and putting Lubriderm on X’s genitals, before sexually assaulting him.

The accused tells X that this is a sin but it’s okay for him to do so since he’s a priest. [ 19 ] Eventually, the sexual assaults against X cease towards the end of Secondary 3, in 2011. He is then about 15 years old. [ 20 ] While X is in Secondary IV, the accused learns of a relationship between X and a girl, through the girl’s mother.

He informs X’s parents, who then proceed to ground him up until his graduation, the following year. [ 21 ] Stating that he had sinned, the accused asks X the details of his relationship with the girl thereby claiming that, if he discloses them, he would be able to rebuild his relationship with God. X obeys and confides in the accused. [ 22 ] Time passes and the accused and X still see each other through church functions and involvement in their community.

Throughout their relationship, X feels the power and authority of the accused over him and complies with his demands, fearing retaliation by him or his parents. [ 23 ] In the summer of 2015, while at the church, the accused becomes angry towards X for refusing to accompany him at an oil change for his car. X tries to leave the church but the accused doesn’t let him. Eventually, X leaves to go home. The accused finds him there and, though X and his parents do not let the accused inside their house, he gets in through the back door. A shouting match ensues between the parties.

X’s mother goes for a car ride with the accused to help calm matters down. [ 24 ] A short time after that event, X meets with the police to press charges against the accused for having sexually assaulted him. [ 25 ] The accused denies all sexual allegations made by X. [ 26 ] He does not recall driving X and his friend back from a reconciliation ceremony though he recalls acquiring knowledge of a «grinding» situation at school requiring him to reassure X’s parents about his presence at a high school dance.

In fact, he suggested to X’s parents that he could drive him home after this dance. [ 27 ] The accused specifies that it would have been unfeasible for him to sexually assault X and moreover, to be alone with him, as X claims. To support this affirmation, he details his work schedule, the church premises and the people present at the time. [ 28 ] The accused confirms learning of a sexual contact, on church premises, between X and a girl, through the girl’s mother, in 2011, and telling X’s mother. He argues X fabricated his claim because of this.

He is convinced X holds a grudge against him, since he was subsequently severely grounded by his parents, up until his graduation, in June 2013. [ 29 ] The accused explains wanting to heal his relationship with X after 2011. As an example of healing measures he took, he continued to employ him, under strict conditions, bought him a laptop and brought him on trips that he paid for in part. [ 30 ] Finally, the accused confirms going to X’s house in August 2015. This, after X apparently blows up at him for no reason, and ditches him concerning a garage appointment for the accused’s car.

He stops on his way back from his appointment [2] , at X’s house, because he is concerned for X. This is when X tells the accused, in front of his parents, that he assaulted him. [ 31 ] As similar fact evidence, the Crown adduces the testimony of Y who states he too was a victim of sexual assault by the accused while he was between the ages of 10 and 13. [ 32 ] Y meets the accused when he’s approximately 9 or 10 years old, while attending Camp Jenny, a church summer camp, in Lasalle. [ 33 ] The accused is a priest at the church associated with the camp, St-John’s Brebeuf Church.

He, along with Father Timmins, is one of the two priests assigned to that church, both living in its rectory. [ 34 ] Given that Y’s father is incarcerated, his grand-father asks the accused to take him under his wing and look over him. The accused becomes a good friend, almost a father-figure, for Y, thus becoming a good friend of the family also. [ 35 ] The first time Y experiences sexuality with the accused is while doing homework with him in the rectory.

It’s while using a computer with Y that the accused asks him questions about sexuality and pornography as banners of such matters appear on the computer screen. The accused specifies that this is bad considering Y is young and unmarried. [ 36 ] As time passes, the accused is often alone with Y, sometimes in his car, touching Y regularly on his lap with his hand and progressing to his crotch. [ 37 ] These car rides sometimes end at a motel, where the accused takes a shower, telling Y to take one also.

After, the accused gives Y lessons about unallowed sexual behavior that eventually ends with the accused sexually assaulting him. [ 38 ] The accused tells Y to lie down on the bed, naked, to tuck his penis between his legs and to get on top of him, straddling him while using lubricant.

[ 39 ] On the way back home, the accused regularly stops at a church for them to confess their previous inappropriate sexual behavior. [ 40 ] Y also recounts touching and sucking the accused’s penis, at his request, though most of the acts he remembers are of the accused touching him.

More particularly, oral sex and «general foreplay» to use his expression. [ 41 ] Y remembers the sexual assaults occurring at least once a week, sometimes twice a week, and lasting until he has a girlfriend, around the age of 13. [ 42 ] The sexual assaults end when Y decides to distance himself from the accused, making friends with stronger counterparts. He then stops answering his phone calls or accepting his requests. [ 43 ] On one occasion, the accused phones Y’s house, his sister answers and pretends he’s not home, though he his.

The accused then shows up at their house, insisting to meet with Y, trying to enter their home. [ 44 ] This event marks the end of the relationship between the accused and Y [ 45 ] About a year or two ago, Y is sought out by a church bishop and asked to come forward to report the sexual assaults committed by the accused.

He does so by going to the police and to a church council. [ 46 ] The accused denies all sexual allegations made by Y, specifying that he will address them more particularly when trial will be held for these allegations. [ 47 ] He confirms acting as a newly ordained priest, at St-John’s Brebeuf church, from June 8th 1996 up until 2000, when he transfers to the Newman Center, in Lasalle. [ 48 ] He confirms knowing Y, though he says he could not have met him at Camp Jenny since it only came into existence later on, at the very earliest, in 1998. [ 49 ] He denies acting as a father figure for Y, helping him with homework and bringing him for car rides or to his parents’ house. [ 50 ] He denies going to Y’s residence, stating that his lawyer asked for disclosure of the police report supporting Y’s version and did not succeed in obtaining it. [ 51 ] Finally, he claims the events could not have happened as Y describes them, otherwise Father Timmins would have said something regarding his frequent absenteeism. [ 52 ] Regina Farrow, secretary to the accused at Town of Mont-Royal Church from 2006 to 2016, testifies for the defense.

She explains the accused and her own work schedules. She gives details about X’s presence at church in the years she was there. [ 53 ] Y does not know X and has never acquired knowledge of the content of any complaint against the accused. The first time he heard X’s name was the day before his testimony when he learned through the prosecutor that he would be testifying in support of a similar fact evidence motion. [ 54 ] Finally, X does not know Y and has also never acquired knowledge of the content of any complaint against the accused. ANALYSIS [ 55 ] Both parties agree that credibility is the issue.

It is why the Court must be thorough and entirely consistent with a proper application of the criminal burden of proof in the context of conflicting testimony [3] . [ 56 ] In W.(D.) [4] our Supreme Court sets out guidelines for proper instructions to a jury faced with conflicting versions of the events. The law is clear and simple. The burden always lays with the Crown. [ 57 ] The Crown’s burden is to prove, beyond a reasonable doubt, the accused’s guilt. It never shifts to the accused. The accused is presumed innocent and bears no burden whatsoever.

That principle remains true whether or not the accused chooses to testify [5] . [ 58 ] Proof beyond a reasonable doubt does not require for it to be perfect. It is not proof without any possible doubt either.

Rather, it is proof beyond a reasonable doubt, after a meticulous and global analysis of the whole of the evidence, while considering its imperfections, such as inconsistencies or contradictions [6] . [ 59 ] In C.L.Y. [7] , a sexual assault case where the accused invoked the W.(D.) approach, the Supreme Court made it clear that the key is whether the correct burden and standard of proof is applied, not what words are used in applying them.

W.(D.) offers a helpful map, not the only route. [ 60 ] Often the key evidence in sexual assault cases consists of testimony by the complainant to the effect «the accused did it» and testimony by the accused to the effect «no, I didn’t». Central to such a case is credibility analysis [8] . It is the case here. [ 61 ] Some aspects of credibility can be ascertained from the content of testimony itself, for example the degree of detail a witness is able to provide or, inconsistencies in a witness’s testimony.

Other aspects of credibility can be ascertained by factors such as demeanor, tone of voice, body language, and overall sense of whether a witness is telling the truth or telling a story for whatever purpose [9] . Allegation of a fabricated claim by X [ 62 ] The defense submits X fabricated his claim as retaliation for the accused telling his parents about engaging in sexual activity in church in December 2011.

[ 63 ] To refute the allegation that X fabricated his claim, the Crown adduced, with the permission of the Court [10] , similar fact evidence through the testimony of Y. [ 64 ] He explains the sexual abuse suffered at the hand of his priest with the detail one would expect to be remembered by a child in such circumstances and has tried, for the last 20 years, to forget. [ 65 ] His demeanor throughout his testimony is consistent with a witness trying to do his best to tell the truth under stressful circumstances about traumatic events in his life.

He appeared deeply disturbed by the assaults, wringing his hands and being reflective about living with the burden and consequences of these assaults. But, more can be said. [ 66 ] Y testifies accompanying the accused to have dinner at his parent’s house, in Dorval, once a week or once every two weeks, probably on Sundays. The accused vehemently denies this and, though he confirms that he would sometimes have dinner with them, at their house in the west-island on Sundays [11] , he would mostly go on Fridays.

He also denies Y ever being in the presence of his family. [ 67 ] How, then, can it be explained that Y knows where his parents live? Dorval is in the west-island. How can it be explained that Y knows the accused has dinner with them on Sunday nights and, that he has a twin brother who has kids? None of the evidence tendered, except Y’s testimony, can explain how he acquired knowledge of this information. [ 68 ] On the specific point that it is impossible for the first sexual encounter narrated by Y to have occurred because the accused did not have internet access, the following can be pointed out.

When answering the prosecutor’s question about when he acquired internet access, he expresses himself in the following manner « Me, myself ?» The prosecutor agrees and he answers «The first time I would have my own internet access would have been at Newman Center». [ 69 ] Why does he ask « Me, Myself? ». Why does he answer « my own internet access. This peculiar way of phrasing his answer leads the Court to infer that he had other means to access the internet before being at the Newman center in 2000.

Because of this, the Court finds it is possible he had a way to access the internet, other than his own internet access, before the year 2000. [ 70 ] Consequently, the Court finds Y’s testimony remains unshaken on this aspect and is even confirmed in part by the accused who says he did have an old laptop at the time. [ 71 ] The defense submits Y’s testimony is contradictory to his video statement, of January 2017, concerning the accused trying to insert his fingers in his anus. In his testimony, Y states the accused tried to insert his fingers in his anus.

In his video statement, he talks about the accused asking him to turn over when he would assault him and specifies that he «would never try to put his fingers in my ass or anything like that». [ 72 ] Confronted with this portion of his video statement, Y explains that someone putting his finger near his anus, when grabbing his testicles for example, and even if there would be no penetration, could mean that person is trying to insert his fingers in him. He states someone else could decide that was not the case.

In January 2017, he answered the question in a negative manner but maintains the acts of the accused remain the same. [ 73 ] Though there is a discrepancy between his video statement and his testimony about the accused trying to insert his fingers, the Court is satisfied that Y is recounting this type of act by the accused in the same manner he did in January 2017. It is the

interpretation to be given to the act that differs. [ 74 ] As Y says, it’s not that simple to explain. It’s not cut and paste to use his expression. This is the first time he’s talking about anything like this in criminal court. [ 75 ] The Court accepts Y’s explanation about this discrepancy. [ 76 ] It is also submitted by the accused himself, in examination-in-chief, that he could not have met Y at Camp Jenny since it did not come into existence until 1998, «at the very earliest, 1998» to use his expression. Y places his meeting with the accused, during the summer at Camp Jenny.

He explains he was probably 9 or 10 at the time and became close to the accused around confirmation time. That would mean it was, most probably, summer of 1996. [ 77 ] The Court underlines the fact that the accused contradicts himself on the date on which Camp Jenny started. In fact, in cross- examination, he states this summer camp could only have started in 1997, 1998 or 1999, «since he was not there in the summer». But, his testimony also reveals he started to work at St-John Brébeuf parish on June 8 th 1996.

So, he was indeed working for this parish in the summer of 1996. [ 78 ] It must also be noted that the accused testifies about Y’s mother holding back his sister Amber’s confirmation so that they could both do it together, «not wanting to be bothered with it» to use his expression. This means he knew Y and his family when his was confirmed. [ 79 ] Finally, time of the events having to be considered in the context of the age of the witness at the time of the events to which he is testifying, it is possible for Y to simply be mistaken about his age at the time he attended Camp Jenny.

This does not render his testimony unreliable concerning the sexual assaults [12] . [ 80 ] Consequently, the Court finds the testimony of Y remains unshaken on this aspect and is even confirmed, in part, by the accused’s testimony [13] . [ 81 ] Concerning Y’s understanding of his grandfather entrusting him into the accused’s care, the accused denies that was ever the case. [ 82 ] In examination-in-chief he starts to explain says that Y’s «grandfather would typically come once a…» and drops his sentence.

He never finishes it. He goes on about how children would come to be involved in the church, particularly in the confirmation process, talking about encouraging community service and allowing them to become altar boys. [ 83 ] After this long explanation, he testifies that he never knew Y’s grandfather until Y left with him one day after Mass and he introduced himself.

In cross-examination, he contradicts himself, partially, and says it is Y who introduced his grandfather to him after serving Mass, when they were leaving together. [ 84 ] The Court underlines that Y testified developing a relationship with the accused after meeting him at Camp Jenny. It is only later on that he agreed with his grand-father that the accused could be a good father figure and a trustful person, since his own father was incarcerated. He says this «I think my grandfather had spoken to him».

No other evidence was tendered regarding this. [ 85 ] The Court concludes Y understood his grandfather played a role in him getting to know the accused and finds his testimony to remain unshaken on this point. [ 86 ] For the defense, Y’s testimony about being mostly bothered by the small things the accused did to him is odd and unbelievable. [ 87 ] Y explained, in a very convincing manner, how his life is now afflicted by the assaults he suffered at the hands of the accused. For him, it is through small touches that the accused was able to surreptitiously sexually assault him.

For example, he talks about the accused putting his hand on his lap, or on his belt buckle, when driving him in his car. Almost every time the accused touches Y in such a manner, it leads to him sexually assaulting Y. At 33 years of age, the consequences of this behavior by the accused still linger in his everyday life, him being wary of anybody who tries to touch him in even a simple manner. This portion of his testimony was particularly poignant. [ 88 ] The Court accepts Y’s explanations about why the little things the accused did to him bother him this way and does not find it odd at all.

One cannot forget «there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave» [14] . Moreover, the Court finds that such a way of testifying means he’s not trying to embellish or amplify his testimony. For the Court, this boosts his credibility. [ 89 ] The Court finds Y to be straightforward and frank, believes his testimony and finds it reliable. [ 90 ] The similar fact evidence can now assist the Court in assessing the credibility of the accused’s assertion that X fabricated his claim. [ 91 ] The Court does not believe X fabricated his claim.

Here is why. [ 92 ] Indeed, what Y explains took place between him and the accused is very similar to what X was subjected to. Mostly because of the modus operandi , or situation specific behavior, employed by the accused to create opportunities for sexual assaults. But there is more. [ 93 ] The acts themselves, except for anal penetration, are mostly the same. Having both X and Y take a shower before engaging in sexual behavior with them and using lubricant with both of them also.

And, both of them living with the escalation of the sexual assaults by the accused. [ 94 ] The abuse of authority and trust in addition to opportunities of being alone with either complainants because of this, combined with the discourse developed by the accused, in relation with this abuse of his authority, about sinning, confessing and lessons to be learned, can certainly be considered particular and distinctive [15] . [ 95 ] Even their relationship with the accused ends in a similar manner, him seeking them out at their home, not accepting that they no longer want to spend time with him or communicate with him. [ 96 ] In the context of the whole of the evidence adduced, endorsing the accused’s allegation would result in believing the unbelievable [16] , that X being mad at his priest for telling his parents about his sexual behavior in 2011, concocted, in 2015, a story resembling so much Y’s testimony of 2018, about events occurring between 1996 and 1999.

This, though they have never met and never known about each other, nor the content of their complaint. And, all of this in the context of Y being sought out by Bishop Dowd and filing his complaint after X, in 2017. The Court finds this is highly improbable. [ 97 ] Even if the Court would not have the benefit of the similar fact evidence, it would still find it highly unlikely that X fabricated his claim. [ 98 ] X filed his complaint in August 2015, for events occurring between 2008 and 2011. He collaborated with the police and made a video statement.

He testified at the preliminary inquiry in 2017 and again at trial, in 2018. No motive to file a complaint, other than the one alleged by the defense, was tendered into evidence. [ 99 ] Clearly, and it is admitted by both X and the accused, X was angry at his parents for the grounding that followed them learning about the church incident. The accused even admits that X was angrier at his parents than him. Why then, would he file a complaint against him ? [ 100 ] And why would he wait until August 2015 to file this complaint if what the accused alleges is true?

The punishment enforced upon him by his parents had long been over with at that time. In fact, it ended more than two years before, in June 2013. Moreover, the accused had been healing their relationship for those two years and X had been participating actively in maintaining this relationship with him. [ 101 ] The Court finds it highly unlikely that X fabricated his claim and rejects the allegation that he did so.

[ 102 ] An important last word concerning bolstering the credibility of X. First, similar fact evidence can only be used for the purpose it was allowed for and nothing more. Here, it was allowed for the purpose of rebutting the allegation that X fabricated his claim. It is the only use the Court makes of the similar fact evidence. [ 103 ] Since the rebuttal of the allegation that he fabricated his claim is successful and demonstrates the allegation has no basis, it can impact positively X’s credibility insofar as it removes a motive of fabrication. Nothing more.

It certainly cannot be used to bolster X’s credibility on any other aspects of his testimony and the Court will not do so. Testimony of the accused [ 104 ] First, and foremost, a few words concerning the testimony of the accused. [ 105 ] Often, he is asked simple questions, by his lawyer or the prosecutor, and does not answer them. Rather, he gives lengthy answers, providing ample information he deems useful to his defense of denying the charges. Often, both lawyers have to reiterate the unanswered question. And only then does the accused finally answer.

Here are a few examples. [ 106 ] At the end of his testimony in chief, the accused’s lawyer asks him what he has to say in respect to X’s testimony regarding inappropriate behavior towards him, after driving him from reconciliation. The accused answers this question by stating that he doesn’t remember driving X home after reconciliation but rather after a dance where X grinded against a girl. He never addresses the inappropriate behavior as asked by his lawyer.

Instead, he goes on about suggesting to X’s parents that he drive him back home after a high school dance and how he eventually did that, a friend of X accompanying them. [ 107 ] Then, his lawyer asks him what he has to say regarding the acts towards X, in the rectory. For almost 3 minutes, the accused argues why it would be impossible for him to be alone with X, on Tuesdays nights. He even refers to Regina Farrow’s testimony to support his theory.

He never addresses the acts themselves, as asked by his lawyer. [ 108 ] Then, his lawyer asks him what he has to say regarding the acts that would have happened after Sunday Mass. Here, he states that he didn’t address the allegations in his testimony but that they didn’t happen.

More particularly, he talks about «the feasibility of something like that happening…» while informing the Court of the persons present at these times and specifying that he «definitely did not participate in any such activity». [ 109 ] When asked by his lawyer about the acts that would have happened in summertime, he mostly talks about the summer

schedule and X’s presence at Church. He never answers the question. So much so, that his lawyer asks the question again «…the acts themselves that he’s claiming happened in the summer? ». Only then does the accused answer no, and nothing more. [ 110 ] In cross-examination, when asked about Y being entrusted to him by his grandfather and asked to play a fatherly role towards him, he answers by listing arguments to refute Y’s testimony about when they met [17] . The prosecutor then tells him that was not her question and proceeds to ask it again.

Only then does he answer the question. [ 111 ] Most of his testimony is spent relaying information about his occupation as a priest, his role towards parishioners and arguing why it is unfeasible for the assaults to have occurred. [ 112 ] Finally, the accused’s lawyer concedes that he testified in a manner such that he sometimes had to cut him off. [ 113 ] These are just some illustrations of why the Court finds the accused not to be forthright.

He answers evasively and is much more preoccupied with arguing his case, than giving honest and forthright answers to simple questions, most of them asked by his own lawyer. To hear, and look at him, testifying in the manner he did, and as summarily described before, the Court concludes that the accused is not telling the whole truth and is mostly telling a story for the purpose of rebutting X’s testimony . [ 114 ] On the «feasibility» of being alone with X on church premises, the accused argues himself that it could not be as X testified.

One of the reasons he gives is the presence of Regina Farrow on Tuesday’s, at church, rendering X’s version «unfeasible», to use his expression. However, Regina Farrow testifies for his defense, in examination-in-chief, that it was possible for X to be alone with the accused, on Tuesday evening’s when he would stay behind, after her leaving.

She would not necessarily be present when X was there. [ 115 ] The Court believes Regina Farrow’s testimony and finds it reliable. [ 116 ] In addition to contradicting the accused’s testimony on this point, Regina Farrow’s testimony confirms X’s version in the sense that he was sometimes alone with the accused on Tuesday evenings at church. [ 117 ] Moreover, Regina Farrow states it’s possible she told Bishop Dowd the accused was controlling with her [18] . This confirms X’s testimony relating to the overpowering role the accused appropriated himself in his entourage.

This is also illustrated in the accused’s testimony itself. It is obvious to the Court, from listening and looking attentively at the accused testify, that he relishes knowing, and demonstrating to Court that he knows, every member of X and Y’s family, calling them by their first name. He even made a point of telling the Court that Y’s mother, P., used her maiden name, D., as a last name, instead of Y’s family name.

Evidently, the accused is intimately entwined in both X and Y’s families. [ 118 ] Concerning the accused testimony about healing his relationship with X, after 2011, the Court finds it peculiar, to say the least, that, according to the accused’s testimony, X would be the one having to redeem himself but, that it is the accused that is working on healing the relationship. [ 119 ] If X violated his trust, as the accused says, in having sex with a girl in church, why would the accused be the one who would need to heal the relationship?

Following his theory, it would be because X is angry at him for telling his parents and the grounding that followed. This is unconvincing and highly unlikely in the context of the healing he describes, such as trips and gifts, continuing for years after 2011.

[ 120 ] Let us not forget that, according to the accused, X behaved inappropriately and violated his trust in December 2011, and was grounded by his parents, for a year and a half following that, until June 2013. The accused is asking the Court to believe he’s the one who, because of these events, who would need to heal their relationship, for the following years, until August 2015. [ 121 ] How can that be when he testifies it’s X who had to work to regain his trust?

Partially paying for a trip to Mexico when X is 18, later offering to X’s parents to have him come visit him in Washington, which he does, and then arranging a trip to Charlevoix with X, are some of the actions he claims were part of healing their relationship. So is the buying of laptop when he becomes a student at Concordia University.

All of these acts on the part of the accused are much more consistent with the behavior of someone who has done something wrong, has a guilty conscience, has something to redeem himself for such as abuse or, even worse, is trying to ensure his victim’s silence. [ 122 ] Finally, there remains the accused’s testimony about X fabricating his claim against him as retaliation for telling his parents about him engaging in sexual activity in church. [ 123 ] Even if the Court rejected this allegation, it still is part of the evidence tendered.

As such, it can be used to raise a doubt in the Courts mind or even confirm X’s testimony [19] . [ 124 ] Having concluded the accused is mostly telling a story for the purpose of rebutting the X’s testimony, the Court finds this allegation is merely a part of the accused’s story and cannot be relied upon. [ 125 ] In

summary, the Court finds the testimony of the accused to lack credibility and truthfulness and deems it unreliable in the context of the evidence as a whole. Finally, it does not raise any doubt in the Court’s mind. [ 126 ] Still, this conclusion does not equate to proof of the accused’s guilt beyond a reasonable doubt [20] . All of the evidence adduced, defense and Crown’s, must be examined. Testimony of X [ 127 ] First and foremost, it is important to underline that X testifies about events that happened in his childhood.

Where an adult testifies as to events which occurred when he was an adult, his credibility should be assessed according to criteria applicable to him as an adult witness. Yet, with regard to evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which he is testifying [21] . [ 128 ] X’s manner of testifying had a proper and not a skewed perspective.

For example, in answering questions as to why he did not tell his parents of the first sexual assault, after reconciliation, he candidly and spontaneously provided answers which reflect the naivety of youthfulness, and the fear of retaliation by a respected Church figure in his family and community. He stated that he did what he was told, that he did not have much choice in it, even explaining that what happened to him might be hard to believe.

Since the accused had been easing such behavior into his way of life for years, it could explain why he learned to live with it and why nobody would suspect what was going on. In

summary, the Court finds that X provided balanced answers and none of them seem to be the fruit of the imagination. [ 129 ] He provides a cohesive, albeit imperfect [22] , narrative of sexual abuse suffered at the hand of his priest with the detail one would expect to be remembered by a child in such circumstances. He does not attempt to embellish what happened.

He describes what the accused did to him and how it made him feel, more particularly in the context of his family’s admiration of his abuser. [ 130 ] His demeanor throughout his testimony is also consistent with a witness trying to do his best to tell the truth under stressful circumstances and concerning traumatic events in his life. [ 131 ] Still, the defense argues the Court should not rely on his testimony because of some inconsistencies and of what can be characterized as odd behavior on his part. [ 132 ] A cautious and probing analysis is required.

The Court has to take a long and careful look to see if, on the whole of the evidence, it can be properly satisfied that the Crown has proven the guilt of the accused beyond a reasonable doubt [23] . [ 133 ] First, the defense raises a contradiction between X’s testimony and his video statement to the police regarding the accused licking his anus. At trial, both in chief and cross-examination, he says the accused asked to lick his anus once. The accused’s lawyer asks X if he remembers telling the police, in his October 2015 video statement, that licking his anus was during sexual intercourse.

X answers that he does not recall saying this but recalls specifying that it happened only once. [ 134 ] X is then confronted to his video statement in which the investigating officer asks him «Est-ce qu’il t’a déjà demandé autre chose que de s’embrasser et la fellation?». He answers him «Yes he told me to kiss his ass once and lick it.

I only remember it happening once…it happened when he raped me…when I was in his bed, not …yeah….»…He goes on to says «’cause the fellatio happened on his couch but this… happened in his bedroom». [ 135 ] At trial, he starts to answer the lawyer’s question regarding this portion of his video statement and asks to listen to it again before answering.

He listens again to the video testimony previously brought to his attention and explains that he was nervous during this interview, trying to do the best job he could in providing the answers to the officer’s questions, and thought, in his mind, that he had corrected himself when he said the word not . So, in

summary, the portion where he stated it happening when he was raped would be incorrect and the portion where he stated it happening when he was in his bed would be correct. [ 136 ] The defense argues that X is molding his answer to lessen the contradiction. The Court does not agree. [ 137 ] First, when testifying in chief about the accused asking him to lick his anus, X specifically told the Court that he did not want to

«really give a solid point because it was just an escalation». The Court does not find that there is a contradiction between his video statement and his testimony regarding the licking of the anus. He told the Court it happened only once, in the accused’s bedroom and while he thinks he was in Secondary 2. He said the same thing in his video statement. [ 138 ] But, he said something more in his video statement. He said it had happened when he was raped by the accused. Then, he said to the officer that «it happened when he was in his bed, not …yeah».

In the context of his testimony revealing the rapes happened in the accused’s bedroom, and having had the opportunity, more than once, to see and listen to this portion of his video statement, the Court accepts the explanation of X when he states he thought he corrected himself by stating this and using the word not when dropping his sentence. [ 139 ] The defense also argues that X testifies about practicing masturbation with the accused though he never said so in his video statement to the police.

When confronted about this, X says that, if he didn’t state it in his video statement, he nonetheless recalls that it happened. He also adds that this interview lasted about 45 minutes, with a police officer asking him questions. In the grand scheme of things, he thought being raped was a much bigger thing than masturbation. This would explain him not mentioning it. [ 140 ] Also, having researched about making a police complaint, X thought he might have other opportunities to explain, in more details, the abuse he suffered.

That was not the case. [ 141 ] In the context of X’s testimony lasting a bit less than a day versus a 45 minutes video statement led by a police officer, the Court finds it plausible that X would not address every single one of the assaults he was subjected to and hence, would probably not think about telling about masturbation, or using the word masturbation, it being the lesser of two evils, in comparison to being sodomized. [ 142 ] The defense also submits that it is not credible for X not to have been pre-interviewed by the police before his video statement.

Indeed, for the defense, X would have learned in this pre-interview that there would be no other interviews. Suffice it to say that no evidence was tendered to support this argument. [ 143 ] The only evidence made available to the Court is the testimony of Detective Simon-Luc Tanguay. He conducted the video interview of Y. Though he does explain meeting Y for a few minutes before entering the video room for his statement, he never says he informs him that there will be no other interview.

In fact, he says this meeting lasts a few minutes and it is to explain the procedure to Y, that he should not be surprised about being recorded when he is interviewed and to be honest when he answers the questions. This in no way supports the defense’s argument. [ 144 ] It is also argued by the defense that X does not give a lot of details about the rapes and is mostly repetitive about these three events, not being able to distinguish between them. [ 145 ] When recounting being sodomized by the accused, X explains having to take a shower first, in the bathroom adjacent to the accused’s bedroom.

The accused is lying in bed, with a t-shirt and underwear on, pretending to sleep. X pretends to wake him up. Kissing and fellatio follow and the accused asks him to put his legs in the air and get to the edge of the bed. The bed is perpendicular to X. After, the accused takes a bottle of Lubriderm on his dresser, uses it and tells X not look. The accused then anally penetrates him while having X’s legs over his shoulders. X doesn’t understand what is happening, not knowing what anal sex is at the time.

X squirms, not liking the process and being upset, the accused tells him not to look but to look straight up into the ceiling. X asks him what he’s doing and the accused answers that he «can’t tell him because it’s a trick and he would do it at home». The accused tells him to be still, otherwise he would harm himself. This happens three times, in the accused bedroom, while he is in Secondary 3. [ 146 ] With such an account about being raped by the accused, the Court is baffled by the argument that X does not give a lot of details.

He recalls the place and period in time, the scenario, his position and the accused’s position, what he told the accused and what the accused told him and finally, how it felt to be sodomized.

This constitutes a very detailed account, by an adult, of traumatizing events occurring while he is a young adolescent. [ 147 ] It is also argued that so many people were present in church, surrounding the accused and X, that it renders it impossible, or improbable, for the accused to assault X without anyone noticing anything. [ 148 ] Does the Court really need to reiterate that sexual assaults are most always committed in secrecy, behind closed doors?

Still, the evidence tendered in this trial contradicts the defense’s argument in the most convincing manner. [ 149 ] In support of his defense alleging that X fabricated his claim, the accused presented a motion under

section 276.1 C.cr. motion. This motion was granted. The evidence reveals X engaged in sexual activity, with a teenage girl, at church, in December 2011. This happened while other people were present at the time. The accused himself testifies that he didn’t believe he would have to keep a physical eye on X «with that number of people around». Still, X was able to engage in sexual activity without anyone noticing. [ 150 ] As a result, the defense demonstrated that sexual activity can occur even when other people are around.

Moreover, it can happen in church, when other people are around. [ 151 ] For the defense, it is unreasonable for X to fear the accused telling his parents about the grinding incident since the abuse, occurring for the first time after this, is much more important in comparison. [ 152 ] It must be noted that the accused is an adult, an important figure of authority, a representative of the Church, worshipped by his parents and venerated by the Community while X is a young adolescent submitted to his authority and that of his parents. [ 153 ] It can also be inferred that X was right to fear being grounded by his parents for any sort of sexual activity, the evidence revealing that was the case when they found out about him and the young girl, in 2011. [ 154 ] Finally, it can also be said that X’s fears, about not being believed at the time and fearing the accused telling his parents about the grinding incident, are materializing during this very trial.

As a matter of fact, during this trial, X tells of the abuse, the accused denies it

and uses X’s sexual behavior as part of his defense to refute his allegations. This resembles the scenario X was fearing. [ 155 ] The Court believes X’s testimony and finds it reliable. Conclusion [ 156 ] Consequently, the Court is convinced beyond a reasonable doubt of all the sexual assaults recounted by X. [ 157 ] The Crown has met its burden regarding all the charges laid against the accused. FOR THESE REASONS, THE COURT: DECLARES the accused guilty of counts number one, two and three of the indictment; DECLARES a judicial stay of proceedings on count number one.

WITHOUT COSTS. ________________________________ PATRICIA COMPAGNONE, J.C.Q. Me Annabelle Sheppard Counsel for the Crown Me James Cocciardi Me Mark Paci Counsel for the accused Date of hearing : November 19, 20, 21, 22 and 23, 2018