R.v.MacNeil

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 ** Unedited **

  Indexed as:

 R. v. MacNeil

 

 Between

 Her Majesty the Queen, and

 Edward Mark MacNeil

 

 [1996] O.J. No. 3483

File Nos. 2262‑94, 102‑95 and 272‑96

 

Ontario Court of Justice (General Division)

Kurisko J.

 September 19, 1996.

 (19 pp.)

 

Counsel:

David MacKenzie for the Crown.

Lee Baig for the accused.

 

[para1]     KURISKO J.:‑‑ The accused, Edward Mark MacNeil has entered pleas of guilty to seven counts of indecent assault between 1968 and 1973 contrary to the relevant provisions of the Criminal Code.  The crimes were committed against seven boys between age 9 to 11 [See Note 1 below].  All but one of the victims were altar boys at St. Agnes Roman Catholic Church in Westfort, in the District of Thunder Bay, where the accused was a priest.

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 Note 1:  An order has issued prohibiting publication of the names of the victim or facts which might reveal their identity.

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[para2]     Convictions were entered after hearing an undisputed summary of facts read into the record by the Crown, the substance of which is as follows: 

     *  R.W. between January 1, 1968 and December 31, 1971 

The events started with the accused hugging the victim and rubbing his penis culminating, on occasion, in the accused ejaculating.  (In his victim impact statement  R.M stated he was accosted by the accused on several occasions during this period of time.)

     *  R.M. between January 1, 1968 and December 31, 1969 

After inviting R.M. upstairs at the church to listen to music the accused turned out the lights in the room,  grabbed the eleven year old boy from behind and rubbed  his erect penis against him. 

     *  B.B. between January 1, 1970 and December 31, 1970 

About 1970 the accused invited B.B., to view a movie  at the church.  While sitting on his lap B.B. felt the accused get an erection. 

     *  K.M. between January 1, 1970 and December 31, 1970 

  K.M. became an alter boy in 1970.  He sought out the accused for advice relating to family matters.  One night when he was sleeping at the rectory the accused got into bed with him, and after fondling him, ejaculated.  On  another occasion he attended a church youth camp, thinking he would be safe amongst the group of boys.  However, the sleeping arrangements were manipulated so that K.M. was sleeping alone.  During the night the  accused got into the sleeping bag and repeated the  indecent assault.

     *  A.M. between January 1, 1972 and December 31, 1973 

A.M. was not an altar boy but was a Catholic and trusted the accused who he knew was a priest.  In 1973, when he was ten years old, A.M. was invited to go for a  ride with the accused.  While sitting on the accused’s lap steering the car the accused brought the vehicle to a  stop, and grabbed A.M.’s hand and placed it on his (the accused’s) private parts.  On the ride back the accused unzipped A.M.’s pants and fondled his penis for a period of time.  Later the accused invited A.M. to come to church.  Prudently, the invitation was declined.

     *  T.G. between January 1, 1972 and December 31, 1972 

 In the spring of 1972 T.G. moved to Westfort.  He wished to continue his role as an altar boy.  He was  introduced to the accused who brought him to small room in the basement of the church.  When he was grabbed by the accused, T.G. felt the accused’s penis against his  chest.  He managed to escape. 

     *  C.K. between January 1, 1968 and July 14, 1971 

 C.K. began to serve as an altar boy at the age of seven or eight.  He remembers being seeing the accused  grabbing other altar boys, masturbating himself and ejaculating.  He was subjected to fondling of his own private parts on approximately a dozen occasions in a  room at the church.

Victim Impact Statements 

[para3]     Although the actions of the accused did not involve violence resulting in physical harm, at least three of the boys have experienced serious and permanent emotional and psychological consequences.  The following excerpts from their Victim Impact Statements reveal the magnitude of the harm they have endured. 

[para4]     In his victim impact statement R.M. says his life was drastically changed forever from that of a normal child after being accosted by the accused on many occasions: 

 I do not like to be touched, even by a friendly handshake.  My life has been a nightmare since this man tormented me with his unwanted attentions.  My childhood and peace of mind ended. 

                           . . . . . 

 Besides the fact that my life is a total mess, my sexual desires are not, and never have been normal.  For 20 years, I have searched for answers to my behaviour by  seeking help of psychologists, psychiatrists and  counsellors, but only recently have I spoken out about what happened to me.  I want him to see my pain ‑ the pain of years of alcohol and drug abuse; the pain of  deciding I no longer wished to live because it hurt too much; the constant pain in my head which I have tried to dull with prescription drugs for the past 16 years. 

                           . . . . . 

The experience has invaded every part of my life.  My marriage has failed.  My beautiful four year old daughter has suffered.  I could not even bath her, not for the fear I would abuse her, but because of the painful  flashbacks this situation would bring forth.  No one can know what this is like unless they have gone through similar experience.  My life has been and continues to be a nightmare I cannot seem to wake up from.

[para5]     After describing his experience in the darkened upstairs room of the church, R.M. states: 

As time went on I could only try to understand the  magnitude of this horrendous event.  Then came the nightmares.  The first one I remember is still with me until to‑day.  I’m laying in bed sleeping until all of a  sudden I wake up to see Father Ed standing beside my bed all dressed in his ministerial clothes.  He just stands there staring never saying a word with no expression on his face.  Then he suddenly lifts his hands up over his  head and he has a butcher knife in them.  At this point I always wake up trying to scream, but I can’t catch my      breath.  I’m soaked wet with perspiration. 

                            . . . . 

I never had an adult to look up to or direct me so I  discovered that there is only one way to survive when you  have such a secret and that is what I did.  First I  discovered sniffing airplane glue.  Then I was introduced  to other drugs and alcohol … I never realized the  impact he had on my thinking.  I hated anyone with  authority, especially anyone who has anything to do with the church. 

[para6]     K.M. says he consulted the accused for counselling and guidance during the marital separation of his parents in 1970.  In his lengthy and detailed statement he describes as the effects of his experience on his relationship with his mother, drug and alcohol abuse, relationship with women, his religious’ beliefs and his self‑esteem.  He says he blamed his mother for putting him in the position that led to the sexual assault.  This strained their relationship and he ended up him running away from home.  At the age of 15 he started using drugs and alcohol “to help me forget the sexual abuse that was perpetrated against me.”  Because of mistrust and fear of being hurt by allowing someone to get close to him he “put walls up” to protect himself and was unable to maintain a serious relationship until he met his wife at the age of 27. The alcohol abuse was out of control to the point where his marriage was almost destroyed and he joined Alcoholics Anonymous.  He says he has lost his faith in God and the Roman Catholic Church and mistrusts all religious organizations. The effect on his self‑esteem he describes as follows: 

Before the abuse I felt confident and secure.  I played organized hockey and felt pretty good about myself … I  had dreams of attending college to become an architect.  After the abuse I felt to insecure about myself, did not  show any interest in girls the way other boys my age did,  felt ashamed.  I felt different.  I felt mistrusting of  adults.  I did not feel comfortable in social settings. I thought my appearance was unsatisfactory.  I had lost  my ambitions and goals in life.  I went through bouts of  depression.  I felt somehow I had allowed the abuse to  happen and that I might be homosexual because of it. 

Background of the accused since the 1973 

[para7]     From 1973 to 1976 the accused worked as the Galilee Program as the director for the House of Prayer for Religious and clerics.  From 1976 to 1983 he worked as the Provincial Superior for Missionary Oblates of Mary Immaculate, St. Peters’s Province in Ottawa where he served two terms as Provincial Superior.  After a year of personal renewal and studies in New Mexico he returned to the Galilee Program as administrator in the Program of Personal and Spiritual Renewal.

 [para8]     From September 1991 the accused was engaged in various ministries with adults only.  In June 1993 he was relieved of all responsibilities as a priest.  In 1993 he worked as a volunteer at the Toronto Wellesley Hospital with special responsibilities for the care and comfort of AIDS patients.  In addition as a volunteer with the Street People’s Association of Toronto and he delivered soup, coffee, sandwiches, plus warm coats and sleeping bags. 

[para9]     In 1994 the accused went to Mount St. Joseph in Peterborough, as chaplain.  This is a religious community of about 70 women many of whom are infirm or retired.  Before taking the position he was forthright in explaining to the Sisters in charge that he was dealing with problems in the past.  Several letters have been filed by members of Mount St. Joseph attesting to his dedicated voluntary service in the activities of this religious community.  It is apparent he is loved and respected and fulfils an important role in this community.  Letters from other persons with whom he has had contact over the years since 1973 are similarly praiseworthy and supportive. 

[para10]     In July, 1990 he requested help for his sexual problems. Participation in the residential program at Southdown in Aurora was recommended.  This program provides intensive multi‑modal treatment for clergy who are experiencing psychological conflicts, emotional or sexual problems, chemical dependency or substance abuse.  The accused was seen for individual psychotherapy until he was able to enter the residential program in March 1991.  He was discharged in September of that year.  Since then he has attended twice a month for individual psychotherapy on Doctor Michael Sy, a therapist at Southdown.  

Principles of sentencing 

[para11]     In the sentencing process courts are guided by well established principles.  These include (i) the protection of society; (ii) general deterrence, that is to say a sentence if possible must deter other persons from committing similar offence; (iii) specific deterrence, that is the specific individual must be deterred from similar conduct in the future; (iv) rehabilitation; (v) denunciation.  The applicability of these principles depends on the circumstances of each case.

[para12]     Sentencing is an evolving process.  Most recently, Parliament has codified the purpose and principles of sentencing.  The codified principles generally restate and expand upon the principles which have been established by the courts.  It is useful to refer to these codified principles which went into effect on September 3rd, 1996. 

[para13]     Section 718 of the Criminal Code sets forth the basic principles which are applicable in the sentencing process.  That section reads as follows: 

The fundamental purpose of sentencing is to contribute,  along with crime prevention initiatives, to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanction 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 or the community; and 

  (f)  to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 

[para14]     Section 718.1 states: 

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[para15]     Section 718.2 states: 

 A court that imposes a sentence shall 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; 

 (iii)  the evidence that the offender, in committing the offence, abused a position of  trust or authority in relation to the victim 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; 

[para16]     The amendments to the Criminal Code are also intended to introduce alternative measures to conventional sentencing methods.  Thus, the concept of a conditional sentence has been introduced.  Section 742.1 of the code provides for a conditional sentence.  That section reads: 

 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 less that two years, and 

(b)  is satisfied that serving the sentence in the community would not endanger the safety of the  community, the court may, for the purpose 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. 

[para17]     It is apparent that the intent of the conditional sentencing provisions is to promote protection of the public by seeking to separate more serious offenders from the community while providing less serious offenders with effective community‑based alternatives.  A conditional sentence may be imposed if, in light of the aggravating or mitigating factors and having regard to the principles enunciated in Section 718, a court would otherwise impose a sentence of less than two years.  The provision would also be applicable if a court believes it is in the public interest to have the offender not serve any or all of his sentence in prison. 

[para18]     The law of sentencing relating to sexual assault is clear.  The courts have consistently held that a person who is convicted of sexual assaults involving a breach of trust in relation to a young person should, in the absence of compelling and exceptional circumstances, shall go to jail.

Position of the counsel for the Crown 

[para19]     Mr. MacKenzie for the Crown states that the nature of the physical acts are, in and of themselves despicable:

We are dealing here with a blatant breach of trust.  Not only is there breach of trust, there is also breach of  duty.  Whatever steps he has taken to rehabilitate himself pales beside the steps the victims have taken. 

[para20]     The court was referred to the Alberta Court of Appeal judgment in R. v. S.(W.B.) [See Note 2 below].  The court stated that when a child is assaulted for sexual gratification (as in the case at bar) then, even if no long‑ lasting physical trauma is suffered by the child, it is reasonable to assume that the child may have suffered emotional trauma, the effects of which may survive longer than bruises or broken bones and may even be permanent.  Of particular significance to the case at bar are the observations by the court that the initial effects of sexual abuse may include reactions of fear, anxiety, depression, anger, hostility, and inappropriate sexual behaviour and that, in the long‑term, the child may be fearful and never capable, as an adult of forming a loving, caring relationship with another adult.

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 Note 2:  (1992) 15 C.R. (4th) 324

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Position of counsel for the accused 

[para21]     Mr. Baig says the circumstances of this case are exceptional by reason of the conduct and attitude of the accused since the offences were committed.  He has demonstrated his remorse not only by words but also by constructive action.  He is not a candidate for rehabilitation because he has been rehabilitated, not as a result of any court ordered program, but rather as a result of his own initiative.  The accused is not a danger to society.  There is no need for specific deterrence.  His contribution to the sick and needy since the time of the offences has been exemplary. 

[para22]     In making these submissions Mr. Baig points to reliable and irrefutable evidence adduced on this sentencing hearing and in particular the following. 

[para23]     In a letter dated May 23, 1996 filed with the court Doctor Sy states: 

Ed has not only shown a keen sense of awareness of how  dysfunctional and distorted his sexual organization was; he also shows a clear sense of sorrow over his actions and the harm he caused the youngsters he molested. 

The apology by the accused to the victims in open court during the sentencing hearing supports this statement. 

[para24]     Doctor Sy states that incarceration at this point would serve no purpose in terms of making the accused recognize the inappropriate and harmful nature of his actions because he already sees and recognizes this.  He continues: 

There is nothing left to do in terms of remediaiting[sic] Ed’s sexual behaviour.  He has not behaved in any inappropriate manner over the past years.  He is comfortable with this and does not show any sign of compulsive or impulsive behaviour.

[para25]     In an addendum dated September 13, 1996 to the Presentence Report James R. Sutton, the Probation Officer comments on the complete honesty of the accused from the time he began treatment at Southdown.  He says:

Typical is denial and the minimization by offenders be they members of religious communities or not.  I have worked in this specific area for years.  In my experience Macneil is the most atypical paedophile that I have ever met, either as a Probation and Parol Officer or in my capacity as the Head of Parole at Millbrook Correctional  Centre, a maximum centre that houses paedophiles.

 [para26]     Mr Baig submits that a conditional sentence be imposed to be served at St. Joseph in accordance with an offer by the Assistant General Superior of Mount St. Joseph to supervise any jail sentence that might be imposed.  This can be readily done because the accused resides in a house located on the property.  This disposition would enable the accused to carry on the important and valuable Chaplain and other volunteer work he has been performing at St. Joseph for the past two years.

 [para27]     In further support of his submission Mr. Baig has referred to a letter from Sister Margaret Shannon of Mount St. Joseph filed as a exhibit in which she states: 

 It seems to me to be a futile purpose for this man who has made all the right moves to make restitution for mistakes as a young person to have to serve time now as he approaches the age of sixty.  His mental anguish and deep remorse over these past years are in essence “trial and punishment”.

 

Discussion 

[para28]     It has been approximately 25 years since the crimes in this case were committed.  The general rule is that a sentence, if it is to be effective, ought to be imposed at the time closest to the date of the offence.  The question that arises in this case is what significance, if any, should be placed upon the length of the passage of time in this case.

[para29]     In R. v. Spence [See Note 3 below] the Alberta Court of Appeal held that a lapse of time in sexual assault cases does not render inoperable the general principles of deterrence and denunciation.

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Note 3:  (1992) 78 C.C.C. (3RD) 451 

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[para30]     In this at bar deterrence and denunciation are paramount and require a term of imprisonment.  The sole question is the length of the sentence, which must of course be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence and the offender.  (section 718.2).  The sentence should also be similar to sentences imposed on similar offenders for similar offences; committed in similar circumstances. 

[para31]     In R. v. Peterson [See Note 4 below] the accused appealed his conviction after trial by jury and the sentence of five years on two counts of sexual assault, one count of invitation to sexual touching and on count of sexual touching in respect of three very young girls who attended a home day centre run by the accused’s wife.  After dismissing the appeal against sentence Osborne J.A. said: [See Note 5 below] 

The offences of which the appellant was convicted were serious and a penitentiary sentence was called for.  The five‑year sentence imposed by the trial judge falls within the range of reasonable sentences and a serious breach of trust involving three young victims.  I would grant leave to appeal sentence, but would dismiss the appellant’s sentence appeal.

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 Note 4:  (1996), 27 O.R. (3d) 739 

Note 5:  Ibid., at 761 

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[para32]     On January 5, 1996 the Honourable Mr. Justice Stach accepted a joint submission at Kenora for imposition of a four year term in the penitentiary for 19 offences of indecent assault against 19 victims at a residential school at a remote community in Northwestern Ontario during a five to six year period between the mid 1960’s and 1971.  The court accepted that the pleas of guilty by the accused constituted an acknowledgement and an indication of remorse.  It was also recognized that the pleas avoided a lengthy, expensive and, for the victims, the traumatic experience of having to testify.  In his reasons (unreported) Stach J. said: 

The sexual abuse of a child by one who stands in the  position of a parent towards that child is a very serious crime.  It is a gross abuse of parental trust and power which society will not tolerate.  Absent quite  exceptional circumstances, the offence warrants a denunciatory sentence which reflects the revulsion of  society to this type of offence.

 [para33]     This statement applies to the relationship and duty the accused had as a priest to the young children in his care.  I unequivocally endorse these comments.  

[para34]     In the Queen v. Hubert Patrick O’connor [See Note 6 below] the Honourable Mr. Justice Oppal of the Supreme Court of British Columbia imposed a sentence of 2 1/2 years on one charge of indecent assault on a female person and a second charge of rape.  Both incidents took place approximately 35 years ago when the accused, who is a Roman Catholic Bishop, was a priest and principal of the Cariboo Indian residential school.  Both victims were former students of the school.  At the time of sentencing on September 13, 1996 the accused was 68 years old.  He entered the priesthood in 1955.  In the 1960’s he was the principal of the residential school.  In 1971 he was ordained as a Bishop.  The evidence disclose he has had a splendid record of public service.  Until 1991 when the charges were laid he was in good health.  He now suffers from ill health.  Victim impact statements disclose devastating effects on the victims similar in many ways to the victims in this case.

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 Note 6:  No. CC920617 Vancouver Registry.  The reasons have not yet been reported.

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[para35]     In support of a penitentiary term of seven years the Crown has referred the court to the decision of the Newfoundland Court of Appeal in R. v. Edward English [See Note 7 below] where sentences totalling 13 years imprisonment were reduced to ten years for 15 assault and sexual abuse offences by a Christian Brother against “captive” children at the infamous Mount Cashel Orphanage.  The compilation in that case of sentences previously imposed by Newfoundland courts on other Christian Brother offenders range from 2.08 years (four convictions) to 5 years (seven convictions) and six years (four, six and ten convictions).

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Note 7:  (1994) 31 C.R. (4th) 303

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[para36]     Evidence presented on this hearing supports many of the factual contentions stated by Mr. Baig in support of the conditional sentence.  To repeat what Mr. Baig has said, it is apparent the accused has demonstrated his remorse by words and action.  He is not a candidate for rehabilitation because he has been rehabilitated, not as a result of any court ordered program, but rather as a result of his own initiative.  The accused is not a danger to society.  There is no need for specific deterrence.  It is extremely unlikely the accused will re‑offend.  He is not a danger to society.  He has demonstrated true remorse by his words in court, to others and by his pleas of guilty.

[para37]     Notwithstanding all of these mitigating circumstances the overriding need for general deterrence and denunciation of the depraved and reprehensible conduct of the accused requires the imposition of a term of imprisonment in the penitentiary.  Having come to this conclusion, the prerequisite for the imposition of a conditional sentence (imprisonment for less than two years) has not been met and I am precluded from acceding to the submission.

[para38]     The submission by the Crown for a term of seven years could be imposed because of the egregious nature and circumstances of the sexual assaults.  The requirement to consider the mitigating circumstances relating to the offender render the submission of crown counsel, harsh, unrealistic and not maintainable.

[para39]     None of the mitigating circumstances of the accused in this case were present in the five year sentence upheld by the Court of Appeal in Peterson.  The factors of complete openness in accepting responsibility, and taking rehabilitation before coming to court were absent in the case heard by Justice Stach.

[para40]     Section 718.2(b) of the new sentencing provisions of the Criminal Code require the court to impose similar sentences on similar offenders for similar offences committed in similar circumstances.  With this in mind I have considered the seriousness and number of the offences in the other cases, the impact on the victims in this case, the fact the accused is 60 years of age and the other mitigating facts outlined above.

[para41]     Although none of the offenders in the other priest cases presented as convincing mitigating circumstances as the accused in the case before me, the number and seriousness of the crimes committed by the accused nevertheless requires a penitentiary term of two and a half years on each count to which he has plead guilty to be served concurrently.

KURISKO J.

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