R. v. Cloutier: Court of Appeal for Ontario ruling 30 June 2011

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It looks as though Father Bernard Cloutier may be behind bars before too terribly long.  Finally.  Cloutier was convicted November 2009.  He appealed both his conviction and 5-year-sentence. 

The Ontario Court of Appeal upheld Cloutier’s conviction.  The decision was released today.

On the issue of sentencing Justice K.M. Weiler ruled: “On the issue of sentence, I would grant leave to appeal, but I would dismiss the appeal.” I’m not totally sure what this means?  If the appeal was on both his conviction and, in the event that his conviction was upheld, his sentencing, why say that he has leave to appeal, but the judge would dismiss the appeal?  I think the message is there’s no point, but, I’m not sure.  Can anyone clarify?

Note that in addition to those rulings the court ordered that Cloutier’s is to register as a sex offender.   The trial judge declined to order Cloutier to register.  As a result of his appeal, Cloutier must register. 

I have reproduced below what I can at this time of the ruling.  As you will see, there is a publication ban.  In order to publish the entire ruling I must ensure that I do not violate the publication ban.  It will take me a while to sort that out. So, for now here is what I am comfortable with publishing.

 

_____________________________________________ 

WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

       486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with stepdaughter),

155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

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       (2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

       (3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

       (4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

       486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

CITATION: R. v. Cloutier, 2011 ONCA 484

DATE: 20110630

DOCKET: C51204

COURT OF APPEAL FOR ONTARIO

Weiler, Blair and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bernard A. Cloutier

Appellant

Brian H. Greenspan and Jill Makepeace, for the appellant

Kim Crosbie, for the respondent

Heard: April 20, 2011

On appeal from the conviction entered on July 16, 2009 and the sentence imposed on November 9, 2009, by Justice Paul B. Kane of the Superior Court of Justice, sitting without a jury.

Weiler J.A.:

I. OVERVIEW

[1] Following a ten-day trial before a judge sitting without a jury, the appellant, a Roman Catholic priest, was convicted of sexual offences in relation to four boys, Jerome

Page: 2

Myre, Robert Roussell, Dennis Landriault and L.B., between May 1974 and April 1983, and acquitted in relation to a fifth, R.L.1 The appellant appeals his convictions and, in the alternative, seeks leave to appeal the global sentence imposed of five years’ imprisonment.

[2] The appellant concedes that there was sufficient evidence before the trial judge that, if accepted, could form the basis for a conviction. In this regard, I note that the appellant did not testify in relation to any of the allegations of sexual offences by any of the complainants.

[3] The appellant submits that his trial was unfair having regard to the cumulative effect of errors in the trial judge’s 217-page decision. Overall, the appellant submits that the trial judge “abandoned impartiality and adopted the role of an advocate”, and that in doing so, he “seriously undermined the appearance of fairness”. In addition, the appellant submits that the trial judge’s reasons are inherently flawed in that he engaged in “result-oriented” reasoning. The principal specific errors alleged are that the trial judge:

(1) misapprehended significant aspects of the evidence; (2) applied different standards of scrutiny to the evidence of the Crown and defence witnesses; and (3) relied on material not in evidence. The appellant seeks to have the convictions quashed and a new trial ordered.

1 In these reasons references to “the complainants” refers to the four complainants in relation to whom the trial judge convicted the appellant and not R.L.

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[4] If the appeal from conviction is dismissed, the appellant seeks leave to appeal his sentence and asks that the sentence be reduced.

[5] For the reasons that follow I would dismiss the appeal from conviction and, while I would grant leave to appeal the sentence, I would dismiss the appeal from sentence also.

[6] In order to appreciate the submissions made, I will first outline the evidence of the Crown and defence witnesses and the trial judge’s conclusion. I will also outline the defence and Crown applications at trial and the trial judge’s disposition of those applications. Discussion of the alleged frailties of the complainants’ evidence and the alleged errors respecting how the trial judge dealt with the evidence will be done in the course of dealing with the appellant’s submissions. In dealing with these submissions I will follow the order of argument contained in the appellant’s factum. In relation to the conviction appeal, I deal with each of the appellant’s arguments on a general basis, and then the plethora of fact-driven examples raised by the appellant in relation to those arguments are dealt with separately. My reason for doing so is that, although not jurisprudentially significant, the parties might wish to know some of the reasoning behind the broader conclusions. Many of the evidentiary points raised by the appellant were rebutted by the Crown in its factum and I have drawn freely from it in my response.

[This section of the ruling contains names and information which may be under publication ban.  I need time to go through the ruling to determine which  portions of the text should be redacted and which can be published to ensure conformity with the publication ban]

5. Conclusion respecting the overarching allegations [108] In effect, the appellant sought to have this court re-try the case. There is no basis for appellate intervention.

[109] Overall, the trial judge did not “abandon impartiality” or “adopt the role of an advocate”, and the trial not only appeared to be fair, it was fair.

[110] The trial judge’s decision is thorough and well-reasoned. In his 217-page reasons, the trial judge carefully considered each of the three applications as well as both parties’ submissions on the merits of the case. He addressed the alleged inconsistencies in the complainants’ evidence and explained in detail how he resolved those inconsistencies.

The trial judge’s findings of fact are supported by the evidence. While he did commit a few minor errors as outlined above, none of these errors was material to his decision. He did not commit the errors alleged in his reasoning process.

[111] I would dismiss the appeal with respect to conviction.

Page: 54

B. The Sentence Appeal

[112] The appellant submits that the trial judge erred in blaming him for interfering in the 1983 police investigation of the allegations respecting two of the victims, Myre and Roussell. Inasmuch as this error played a central role in the trial judge’s decision to sentence the appellant to a global sentence of five years’ imprisonment, the appellant submits that the sentence ought to be reduced. The appellant also submits that the five-year sentence is disproportionate to the circumstances of the offence and the offender, having regard to such factors as the appellant’s age and his “exemplary life” since 1983.

The Crown concedes that the trial judge should not have treated the appellant’s attendance at the 1983 meeting as an aggravating factor. The Crown submits, however, that this factor played little role in the overall sentence, which is fit and does not merit appellate intervention.

[113] Accepting the Crown’s concession, I am of the opinion that the overall sentence imposed by the trial judge was nevertheless fit.

[114] The aggravating factor in regard to which the trial judge erred only applied to the charges relating to Myre and Roussell. The trial judge also sentenced the appellant to five years’ imprisonment each for one count of indecent assault in relation to L.B. and one count of indecent assault in relation to Landriault, with these sentences to run concurrently.

Page: 55

[115] The primary considerations in the determination of a fit sentence for cases involving the sexual abuse of children are denunciation, deterrence and the need to separate offenders from society: R. v. D.(D). (2002), 58 O.R. (3d) 788 (C.A.), at paras. 34, 42-43. The trial judge correctly identified the primary considerations in this case as being denunciation and deterrence. While it is true that more than 26 years passed between the most recent offence and sentencing, these were serious sexual offences.

Aggravating factors that were appropriately considered by the trial judge include the appellant’s position of trust, respect and authority as a priest; the appellant’s “grooming” of the boys through the provision of gifts, cigarettes and alcohol and the taking of trips; and the young age of the complainants. The sentence must reflect these factors.

[116] As stated out by Moldaver J.A. in D.(D). at para. 44, “when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms”. This sentence is at the low end of that range and is entirely appropriate in the circumstances.

IV. ADDITIONAL ISSUE RAISED BY THE CROWN

[117] The trial judge declined to order that the appellant register as a sex offender under the federal Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”). The Crown submits that a registration order is mandatory unless the impact of the order would be “grossly disproportionate” to the public interest in societal protection and that that is not the case here. I would give effect to the additional issue raised by the Crown.

Page: 56

V. DISPOSITION

[118] For the reasons herein, I would dismiss the appeal with respect to conviction. On the issue of sentence, I would grant leave to appeal, but I would dismiss the appeal. I would also order that the appellant register as a sex offender under SOIRA.

RELEASED: June 30, 2011 “K.M. Weiler J.A.”

“RAB” “I agree R.A. Blair J.A.”

“I agree Gloria Epstein J.A

*****

I have added a few more bits and pieces to the Father Barry McGrory page. Still not finished.  I will keep picking away.

*****

Canada Day tomorrow! 🙂

Enough for now,

Sylvia

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