Father Gilles Doucette
Priest Diocese of Prince Albert, Saskatchewan.
07 July 2000: found GUILTY – charges of indecent assault against 15-year-old boy committed between 1986 and 1987.
Sentence: 18 month conditional sentence plus community service and participate in a rehabilitation program.
R. v. Doucette, 2000 SKQB 312 (CanLII)
2000 SKQB 312
Q.B.C.N.J. A.D. 1999
No. 45 J.C.P.A.
IN THE QUEEN’S BENCH
JUDICIAL CENTRE OF PRINCE ALBERT
HER MAJESTY THE QUEEN
– and –
K.R. Humphries and K.L. Zerr for the Crown
R.W. Elson for the accused
JUDGMENT OF THE COURT ON SENTENCING OF GILLES DOVELL J.
DOUCETTE ON HIS CONVICTION FOR GROSS INDECENCY
BY A JURY AT PRINCE ALBERT ON MAY 28, 2000
July 7, 2000
 After a trial by Judge and jury, the jury returned with a verdict of guilty to the following offence:
That between the lst day of September, 1986 and the 31st day of December, 1987, at or near Duck Lake, Saskatchewan, Gilles Doucette did commit acts of gross indecency with B. J. F. to wit: by touching the genitalia of B. J. F., contrary to the then section 157 of the Criminal Code.
 I wish to briefly deal with the evidence at trial with respect to the charge of gross indecency as it related to B. J. F. known as and hereafter referred to as J. F.
 Although Gilles Doucette had been J.’s child care worker for three or four years in the early eighties while he attended St. Michael’s residential school, he had not been J.’s child care worker for a few years before the isolated incident occurred that J. testified about.
 J. testified that on one occasion when he was 15 years of age he went to the home of Gilles Doucette for a visit after school. Gilles Doucette invited him into his home, gave him with a cigarette after he asked for one, allowed him to pour both himself and Gilles a glass of whiskey and allowed him to strip down to his T-shirt, socks and shorts and lie down on his bed to watch some TV. Gilles Doucette after taking a shower in a bathroom on the same floor as the bedroom returned to the bedroom in just his shorts and laid down beside J..
 J. then testified that Gilles Doucette masturbated him until he ejaculated and then he returned the pleasure and masturbated Gilles Doucette. J. admitted that he had initiated the sexual activity as between himself and Gilles Doucette and had been an active participant in this sexual activity to a certain point. It was when Gilles Doucette turned him over on his side and pulled down his shorts he believed that Gilles was going to put his penis in his anus and that caused him to be alarmed and he quickly got off of the bed.
 Gilles Doucette’s recollection of J.’s visit to his home that day was different. He testified that J. had attended at his home after school one day for a visit. He allowed him to come in but at no time was any whiskey drank by either himself or J.. Gilles admitted that after he returned to his bedroom in only his shorts from having a shower downstairs he laid down beside J. to watch TV but denied that any masturbation took place or that he had attempted buggery on J.. Gilles Doucette’s recollection was that J. began bragging to him about the size of his penis and that he had responded to him to the effect that “he didn’t have such a big one”. It was then that Gilles noticed J. coming at him with an erection at which point Gilles Doucette realized that the situation had gotten out-of-hand.
 On June 19, 2000, both Crown and defence counsel provided me with very able submissions regarding sentencing as well as the relevant case law as to the appropriate sentence the Court should impose on Gilles Doucette. The defence filed with the court numerous letters from in excess of 70 supporters of the accused from various communities in which Gilles Doucette has either been the parish priest or has worked with individuals connected with his involvement at the St. Laurent Shrine.
 There was no pre-sentence report requested or wanted by defence counsel and thus the Court has not had the benefit or otherwise of such a report.
 The Crown advised the Court that J. F. declined to provide a victim impact statement and thus I have not had the benefit of hearing directly from J. as to the impact this incident has had on his life.
 The accused when asked by the Court pursuant to s. 726 of the Criminal Code of Canada whether or not he had anything to say responded that he did not.
 Thus I am left only with the testimony of the accused as to what impact this occurrence has had on him and am left with only the testimony of the accused as to whether or not he has any remorse for what happened.
 J. F., now 27 years old, married and the father of three or four children, did not want to testify at trial and it was painful to observe him especially when he was being cross-examined. It was very clear that he just wanted to get out of the courtroom. I am thus left in a void as to how this specific incident has effected the complainant’s life. Although Gilles Doucette testified that J. was a very likeable kid who needed extra help with his school work that is just about all the information I have about the life of the complainant either before or after this incident other than the years he attended St. Michael’s and his history as a child.
 The accused denied that any sexual activity took place on the afternoon in question and that he only realized the whole situation had gotten out-of-hand when J. came at him with an erection. Prior to that time he felt comfortable with the situation and that at the time thought it was appropriate behaviour on his part to be lying in bed with a 15-year old boy watching TV with he only wearing shorts and J. only wearing a T-shirt, shorts and his socks. At best he testified that he had used poor judgment.
 The Crown’s position was that the appropriate sentence should be between nine and twelve months incarceration.
 The defence’s position was that a suspended sentence would be appropriate in the circumstances of this case or alternatively a conditional sentence of imprisonment during which the accused could serve his sentence in the community pursuant to s. 742.1 of the Criminal Code.
 In determining what constitutes an appropriate and fit sentence I am governed by the provisions of ss. 718, 718.1, 718.2, 742.1 and 742.3. The relevant sections of Part XX111 of the Criminal Code are as follows:
718. Purpose — The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims and to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
718.1 Fundamental principle – A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.2 Other sentencing principles – A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, or
(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or child,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, or
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
. . .
742.1 Imposing of conditional sentence – Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court
(a) imposes a sentence of imprisonment of less than two years, and
(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 and 718.2
the court may, for the purposes of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under section 742.3.
. . .
742.3 (l) Compulsory conditions of conditional sentence order – The court shall prescribe, as conditions of a conditional sentence order, that the offender do all of the following:
(a) keep the peace and be of good behaviour;
(b) appear before the court when required to do so by the court;
(c) report to a supervisor
(i) within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and
(ii) thereafter, when required by the supervisor and in the manner directed by the supervisor;
(d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and
(e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.
(2) Optional conditions of conditional sentence order – The court may prescribe, as additional conditions of a conditional sentence order, that the offender do one or more of the following:
(a) abstain from
(i) the consumption of alcohol or other intoxicating substances, or
(ii) the consumption of drugs except in accordance with a medical prescription;
(b) abstain from owning, possessing or carrying a weapon;
(c) provide for the support or care of dependants;
(d) perform up to 240 hours of community service over a period not exceeding eighteen months;
(e) attend a treatment program approved by the province; and
(f) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences.
(3) Proceedings on making order – A court that makes an order under this section shall
(a) cause to be given to the offender
(i) a copy of the order,
(ii) an explanation of the substance of sections 742.4 and 742.6 and
(iii) an explanation of the procedure for applying under section 742.4 for a change to the optional conditions; and
(b) take reasonable measures to ensure that the offender understands the order and the explanations given to the offender under paragraph (a).
 At the time of trial Gilles Doucette was 64 years of age who had not been working actively as a priest for approximately two years since being notified of civil proceedings (other than that of J. F.) and the criminal investigation. In addition, he had not been involved during that period with the St. Laurent Shrine, a position he had been instrumental in and very involved with for a number of years. Although the particulars of his health problems were not provided to the Court it was obvious from looking at the pale and frail Gilles Doucette that he had health problems at the time of trial necessitating him to urinate on a frequent basis.
 There is no doubt that these criminal proceedings have had a traumatic and long-lasting effect on Gilles Doucette causing him much humiliation and pain. His parishioners have remained faithful to him as was demonstrated by the great number of them which attended Court everyday. It is obvious that over the years he has gained their respect and trust and that during these proceedings his parishioners have reciprocated that respect and trust in him by their display of loyalty.
 The fate of Gilles Doucette is not only in this Court’s hands but is in that of the Prince Albert Roman Catholic Diocese. It will be up to the Diocese as to whether or not the accused will ever be allowed to actively return to his work as a priest after he has served his appropriate sentence. I was advised at the time of sentencing submissions that the Diocese had requested a transcript of the trial. A word of caution is necessary, as I am sure their counsel will advise the diocese, regarding their assessment of credibility of witnesses without the ability to observe the demeanour of the witnesses as well. The jury in this case was able to hear and observe the witnesses testify as opposed to just reading their testimony and that is a crucial aspect of making any determinations with respect to any court proceeding that the Diocese should keep in mind.
 I was advised yesterday that the Protocol Committee of the Diocese of Prince Albert has already stipulated the prerequisite Gilles Doucette must observe before further consideration would be given by the Diocese to his returning to practical duties as a parish priest was that he enter into a residential rehabilitation program at a religious facility designed to deal with a variety of psychological and behavioural difficulties including chemical dependency as well as possible psycho-sexual problems. The first recommendation of the Diocese is St. Michael’s Centre, operated by the Servants of the Paraclete in St. Louis, Missouri, and their second choice as an institution is the Southdown Institute in Toronto.
 In addition to considering the relevant provisions of the Criminal Code, I have read and considered the relevant case law as provided by counsel. Some cases were more helpful than others, however, it must be kept in mind that there are never two identical cases and each decision is based on its own unique set of facts.
 What has to be determined by me is the appropriate and fit sentence for Gilles Doucette with regard to the offence the jury has found him guilty of.
 As noted by Noble J. in R. v. Ramsay,  S.J. No. 275 (Q.B. Q.L.), at para. 12:
The leading case appears to be R. v. Proulx, supra, ( S.C.J. No. 6) where the Chief Justice outlined extensively the purpose and the basis upon which a conditional sentence is warranted and the approach the sentencing Judge should take in assessing whether or not in the circumstances of the case a conditional sentence to be served in the community should be imposed instead of incarceration.
 As stated in numerous cases in considering the appropriateness of a “conditional sentence” one must look at s. 742.l of the Criminal Code. The section states that a court may impose a conditional sentence on an offender to be served in the community where:
(1) the offence is one not punishable by a minimum term of imprisonment;
(2) the court imposes a sentence of imprisonment of less than two years; and
(3) the court is satisfied that if the sentence is served in the community it will not endanger the safety of it;
(4) that such a sentence would be consistent with the purpose and principles set out in ss. 718 to 718.2.
 In analysing the first three criteria as set out in s. 742.1 in this case I make the following findings:
 First, the offence as it then was of gross indecency is not punishable by a minimum term of imprisonment.
 Second, in deciding whether or not a sentence of imprisonment less than two years is an acceptable sanction, I must firstly exclude two other possible sanctions, namely:
(a) probationary measures;
(b) a penitentiary term.
 As stated by Chief Justice Lamer in R. v. Proulx, 2000 SCC 5 (CanLII),  1 S.C.R. 61, if either of these sentences is appropriate then a conditional sentence is not called for.
 I do not believe that either a probation or a penitentiary term would be appropriate sanctions in this matter. Incarceration is required in this matter, however, I agree with the Crown who suggested incarceration of between nine and twelve months that penitentiary time is not appropriate and that the appropriate range of sentence is a term of imprisonment of less than two years. Thus the prerequisite that any sentence I impose should be less than two years has been met.
 Once the judge concludes that neither sanction is appropriate in all of the circumstances of the case before him, as I have in this case, the judge should move on to consider what a fit sentence would be having regard to the provisions of ss. 718 to 718.2 and to what he (at p. 99) calls “the overarching duty of a sentencing judge . . . to draw upon all the legitimate principles of sentencing to determine a ‘just and appropriate’ sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender.”
 The third prerequisite of s. 742.1 is whether or not the safety of the community would be endangered by the offender serving his sentence in the community. Gilles Doucette does not have a criminal record. There is ample evidence that Gilles Doucette would not represent a danger to the community. Gilles Doucette has resided in the Duck Lake area since he was born. Since childhood the only thing he wanted to be was a priest. He has been not only Duck Lake’s but various other community’s parish priest including several reserves for many years since he was ordained in 1962. He has led a useful and productive life for his entire life both before and since this incident occurred.
 What must now be determined is what the appropriate sentence should be and whether it should be served in the community or in a penal institution. According to R. v. Proulx, supra, I must now move on to consider what the length of sentence should be and if a conditional sentence is the most just and appropriate one for this accused.
 All of the applicable provisions of ss. 718 to 718.2 of the Criminal Code must be considered by this Court. Certainly denunciation and deterrence must be addressed.
 As stated in R. v. L.F.W., 2000 SCC 6 (CanLII),  1 S.C.R. 132, a conditional sentence can provide significant denunciation and deterrence, particularly when onerous conditions are imposed. In that case an accused was convicted of indecent assault and gross indecency involving ten to twelve incidents involving forced masturbation and fellatio when the victim was between 6 and 12 and the accused between 22 and 28 and the accused was given a 21-month conditional sentence.
 At p. 139 of R. v. L.F.W., the Chief Justice stated:
In determining whether to exercise the discretion to impose a conditional sentence, the trial judge also considered the principles of denunciation and general deterrence. In that regard, he stated that the stigma of trial and conviction should not be minimized, and that a conditional sentence may indeed serve the purposes of denunciation and general deterrence if meaningful conditions are imposed and enforced. He also found that a community service order was appropriate in this case. The respondent was proficient in construction and had previously performed valuable volunteer work in the community utilizing that skill.
 Likewise in this case, Gilles Doucette has to deal with the stigma of the trial and the conviction which has all been witnessed by a large number of his parishioners and under the circumstances of this unique case I believe a conditional sentence would serve both the purposes of denunciation and general deterrence.
 Many of the provisions of s. 718 do not have any application to Gilles Doucette’s situation except that they support the contention that his sentence should be a conditional one. There is no need to separate Gilles Doucette from society and the passing of time since this offence occurred of some 14 years has eroded the relevance of some of the provisions such as providing reparations for harm done to victims.
 Of significance is the provision of s. 718.1 in that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The act of gross indecency that occurred as between the accused and the complainant is disgusting especially when one considers the accused being the former child care worker and priest of the complainant. Although the accused testified that he was comfortable with the situation and that he thought that it was an appropriate situation, IT WAS NOT.
 The aggravating circumstances that I find in this case is the accused’s lack of remorse for the offence which occurred and the accused’s abuse of a position of trust that being the former child care worker and priest of the complainant.
 However, the mitigating circumstances include the fact that the offence occurred 14 years ago, was an isolated incident and the 15-year old complainant actually initiated the sexual activity and was an active participant up until a point. Since this incident and for many years before Gilles Doucette was a hard working priest whose work with both the white communities and the aboriginal reserves was well recognized and valued by the community-at-large. There was no actual testimony from the complainant that the accused overtly used his position of trust to seduce him into a compromising position. His only response to being asked why the incident happened was that Gilles Doucette should have known better. I could not agree more.
 At this point I would like to make reference to B. J. F.. He certainly is not to be forgotten in these proceedings. I agree with the Crown that it took courage for him to testify about what happened that afternoon at the home of Gilles Doucette and to acknowledge that he had actually initiated the same sex sexual activity. He took responsibility for his participation without trying to put the blame on anyone other than himself. Although the Court has not had the benefit of a victim impact statement from him, I certainly have kept in mind the trauma in all likelihood experienced by J. as a result of this incident in deciding what the appropriate sentence should be for the accused.
 In considering s. 718.2(b) I have read the numerous cases as provided by counsel which were somewhat helpful but as I mentioned before there are never two cases which are exactly the same. I wish to make mention of just a few of the cases brought to my attention by counsel.
 The Crown argued that this case and the Ramsay case were identical in that both accused were men in authority, both complainants 14 and 15 years old, both complainant aboriginal and both incidents isolated. In that case Noble J.’s decision was that a conditional sentence was not appropriate and that a custodial sentence was required. I acknowledge that certainly there are some similarities in these cases including those previously mentioned, however, the similarity in the cases stops there. The Ramsay case was entirely different in that the accused who was a RCMP Officer at the time of the offence was convicted by a jury of attempted rape in circumstances in which the victim had neither initiated or actively participated in the sexual activity. Ramsay told the victim that if she did not have sex with him he would tell her mother. There were no threats made by Gilles Doucette to J. who actively pursued the sexual activity which occurred. The one incident between the accused and J. did not involve the accused actively going out as a predator seeking a victim such as in the Ramsay case.
 Defence counsel referred the Court to a transcript of the sentencing decision of Fenwick, P.C.J. in the case of R. v. Kenneth Greer, dated August 9, 1999, a 65-year old Roman Catholic priest at Dysart, Saskatchewan, who plead guilty to five acts of gross indecency against five individuals between the years of 1968 and 1974. The learned Provincial Court Judge in that case sentenced the priest to a conditional sentence of 18 months concurrent for each of the five offences. It should be noted, however, in that case the accused plead guilty and thus the complainants did not have to go through the trauma of testifying at trial and the accused had realized his actions were illegal and immoral and had actively sought treatment for his illness.
 It is always necessary to also consider the provisions of s. 718.2(d) in that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances and as stated in s. 718.2(e) in that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.
 After considering all of the circumstances and sentences of similar and related cases, and after considering the purpose and principles of sentencing set forth in s. 718 including the totality principle and taking into consideration Gilles’ age, the exceptional circumstances surrounding this offence, Gilles’ background and contribution to the community both before and after this offence, I sentence you to a conditional sentence of eighteen months.
 As I am satisfied that the safety of the community will not be endangered, I direct that you serve your sentence in the community, upon the condition that you comply with the following terms that I now impose:
(a) Keep the peace and be of good behaviour;
(b) Appear before the Court when required to do so by the Court;
(c) Report to a supervisor:
(i) within two working days, or such longer period as the Court directs, after the making of the conditional sentence order, and
(ii) thereafter, when required by the supervisor and in the manner directed by the supervisor;
(d) Remain within the jurisdiction of the Court unless written permission to go outside that jurisdiction is obtained from the Court or the supervisor; and
(e) Notify the Court or the supervisor in advance of any change of name or address, and promptly notify the Court or the supervisor of any change of employment or occupation.
 These conditions are mandatory and cannot be changed.
 I impose the following additional conditions:
(f) Abstain from the consumption of alcohol or other intoxicating substances.
(g) Abstain from the owning, possessing or carrying a weapon.
(h) Perform up to 240 hours of community service as directed by your supervisor who shall have the opportunity of consulting with the Prince Albert Roman Catholic Diocese;
(i) Attend whatever counselling or rehabilitation program your supervisor believes appropriate in consultation with the Prince Albert Roman Catholic Diocese. This includes the present recommendation of the Diocese that you attend St. Michael’s Centre in St. Louis, Missouri or alternatively the Southdown Institute in Toronto.
(h) Not to have any contact, either direct or indirect, with B. J. F., without the prior approval of your supervisor.
 I AM OBLIGED TO INFORM YOU OF THE PROVISIONS OF s. 742.4 of the Criminal Code.
 Under that section you have the right to apply to the Court to change the additional conditions. The application must be made in writing and is to be sent to the prosecutor and to the Court. It must outline the proposed change and the reasons for the change. A hearing may then be held and the Court may approve or refuse the change that you have proposed, or it may make any change that it considers appropriate. The prosecutor or the supervisor may also apply to change the additional conditions. If they do so and you are notified of the proposed change, you will have seven days to apply to the Court for a hearing to discuss the change. If you do not respond to the notice within those seven days, the change will take place 14 days after the Court has been notified of the proposed change. You will be required to comply with the new conditions.
 In addition, I am obliged to inform you of the provisions of s. 742.6. That section provides that if you violate any of the terms of the conditional sentence order you may be taken into custody or subject to a summons. In that event, a hearing will be held and if the Court is satisfied that a violation has occurred, the Court:
(1) may change the additional conditions of the order; or
(2) may suspend the order and direct that you serve a part of your sentence in custody and then resume the remainder of your sentence in the community; or
3. may terminate the conditional sentence order and direct that you serve the remainder of your sentence in custody. Where a breach is alleged, the supervisor is required to provide a written report outlining the alleged breach of conditions, and you have a right to receive a copy of this report.
 Having explained the order, I further direct the clerk to provide you with a copy.