** Unedited **
R. v. Morrissey
Her Majesty the Queen, and
Robert Morrissey, Accused
 O.J. No. 2965
Action No. OC6704
Ontario Court of Justice ‑ General Division
February 11, 1992 [this should be 1993]
Criminal Law ‑‑ Indecent assault ‑‑ Attempted buggery ‑‑ Gross indecency ‑‑ Assault causing bodily harm ‑‑ Child sexual abuse ‑‑ Sentencing ‑‑ Principles ‑‑ General and specific deterrence ‑‑ Denunciation ‑‑ Rehabilitation.
The accused was convicted of indecent assault, attempted buggery, gross indecency and assault causing bodily harm. The offences were committed in 1960 when the accused was a 20‑year‑ old Christian Brother at a training school. The three complainants were inmates at the school. The accused who was now a 52‑year‑old Roman Catholic Priest had no criminal record and had done outstanding jobs at the Catholic parishes in which he served as pastor. At least two of the complainants had experienced serious emotional problems as a result of their treatment in the hands of the accused.
HELD: Accused sentenced to imprisonment for a total duration of 18 months. The sentence reflected society’s abhorrence of child sexual abuse as well as the need for general and specific deterrence and rehabilitation of the accused.
M.L. Dickie, for the Crown.
W. Markle, for the Accused.
KERR J.:‑‑ The accused was convicted after trial of 2 counts of indecent assault, one count of attempted buggery, one count of gross indecency, and one count of assault causing bodily harm. All of these convictions result from incidents which occurred while the accused was a Christian Brother at St. John’s Training School at Uxbridge Ontario in 1960‑61. The three complainants were inmates and students at the school. Two of them, P. and G. were placed in a dormitory supervised by the accused. The third, S., knew the accused as his grade 8 teacher.
The accused was assigned to the school at Uxbridge in the fall of 1960, when he was merely 20 years of age. He was put in charge of a junior dormitory, and as well was required to teach grade 8 to the inmates of the training school. It is clear on the evidence that he was not qualified to teach, nor was he given any special training in supervising young offenders. In fact his records show that he was considered by his superiors to be somewhat lacking in maturity.
The sexual offences occurred in the fall of 1961. They commenced shortly after the arrival at the school of the complainants P. and G. around mid‑October, and continued until the accused was transferred to Montreal in late December, 1961. The assaults on P. took the form of fondling him and touching his genitals on the football field, and kissing, hugging and fondling him in the accused’s room adjacent to the dorm. The accused gave P. the duty of cleaning the accused’s room, and would summon P. to that room ostensibly for the purpose of doing so, but while he was there he would make sexual advances. On one occasion he committed a gross indecency by having P. perform fellatio on him. On another he made an attempt at buggery of the complainant, but was unable to penetrate him. No violence was offered to P., but the accused provided candy and cigarettes to him.
The accused also fondled G.’s genitals, and crotch area while he was playing on the football field, as well as in the interior of the main building of the school on at least two occasions when he encountered the accused on the stair landing, and once in the lower washroom of the building. Again, there was no violence threatened or offered by the accused to G., and this victim seems to have had no real difficulty in escaping from the accused.
The assault on S. occurred in late November or early December of 1960, when the accused struck him with an open hand on the side of his face with such force that he was knocked to the ground, and suffered a traumatic perforation to his left ear. The effects of this injury persist to this day.
The accused is now 52 years of age, unmarried, and has no previous criminal record. He seems to have lived an exemplary life following his ordination as a priest in 1971. He left the Christian Brotherhood in 1962 after he was refused his vows in April of that year with the notation concerning him, ” devoted to class work and religious obligations, evidence of emotional immaturity and of indiscretion, pleasant character”. Following a short interlude, he returned to the Christian Brothers in June 1967, and obtained a Bachelor of Arts degree from the University of Windsor in 1968. He again left the Christian Brothers in 1969, entered St. Peter’s Seminary in that year, and was ordained as a Roman Catholic priest in 1971. Since his ordination he has served his church as assistant pastor in several parishes, and as a hospital chaplain, as well as a parish priest. Prior to the commencement of these proceedings, he was the pastor at Our Lady of the Prairies church in Daysland, Alberta.
At the sentence hearing, counsel for the accused presented two volumes containing copies of letters, about 250 in total, in support of the accused. Having perused these letters, I have no doubt that the accused has done an outstanding job as a priest, and is considered by those who have written on his behalf as a kind, generous, and caring man. Many of these letters express a disbelief in his guilt on the charges before the court. Others seek mercy on his behalf. It is clear that none of the writers have had any reason to censure the behaviour of the accused during the period of their acquaintanceship. I was satisfied after hearing the character evidence presented at trial that the accused has conducted himself in exemplary fashion since his ordination, and these letters of support confirm that view.
A letter from the accused’s doctor, a specialist in internal medicine, was filed as Ex. 2. In that letter the doctor describes a severe heart attack which was suffered by the accused on November 6, 1991, as a result of which the accused required resuscitation with electrical cardio version at least nine times. He has recovered but has sustained significant myocardial damage, and is under medication to prevent a recurrence. The doctor has no doubt that the initial cardiac event was in some way related to the exceptional stress resulting from the charges before the court. He expressed a concern about a further recurrence should the accused be subjected to an extraordinary amount of stress.
The accused denied his guilt at trial, and continues to do so, as he has indicated his intention to appeal my decision. It would be an error in principle for me to penalize him for his continuing denial. It is his right to insist that the charges be proven beyond a reasonable doubt. On the other hand, there can be no demonstration of remorse under these circumstances, the presence of which would be a mitigating factor for me to consider.
THE VICTIM IMPACT STATEMENTS
Victim impact statements of each of the three complainants were filed (Exhibits 3,4 and 5).
P. fairly concedes in his statement that it would not be fair to the accused to attribute solely to the actions of the accused all of the misery he has experienced in his life since his incarceration at St. John’s, and, indeed, there are references in the statement to “the few who molested and beat me”, indicating that there were others at the school whose actions played a part in instilling in him distrust, hatred and alienation from society. In fact, one of the cases cited to me on this sentence hearing, R. v. McGrath (1992, Ont.Ct., Gen. Div. unreported) involved an assault on P. by a different Christian Brother at the school. Having said that, it is apparent both from his testimony at trial, and from his statement filed, that Mr. P. feels very resentful about the abuse he suffered at the hands of the accused. He says it has had a lasting and serious negative impact on his personality, leaving him feeling alone, cheated out of his childhood innocence, his religion and his self respect, to the point that he turned to heroin to make his thoughts go away.
G.’s statement is similar to that of P. in that it is a broad condemnation of his treatment at St. John’s, rather than being specific to the abuse he suffered at the hands of the accused. Nevertheless, it does describe the disillusionment that he underwent, and the deterioration in his social outlook as a result of the treatment he received by the Christian Brothers at the school, including the accused. He clearly sets out his expectation, on his admission to St John’s, that he would be helped to control his anti‑social behaviour, but instead became more anti‑social as a result of his treatment there. He describes how he felt that there were no advocates in the school that he could go to, and understood that one would get a beating if one were to speak out, and how upon his release his heart and mind were filled with shame and anger for what he had been through there. He says that he was led to blame himself for the trouble he was in, and that he continued to do so for many years thereafter.
Mr. S. was not sexually assaulted by the accused, and his impact statement is more philosophical in tone than that of the two other complainants. He does not wish to see the accused imprisoned for the conviction in respect to the assault on him so many years ago, but expresses the hope that the trial of the accused will make people realize that our children are our most precious resource and that they have to be protected at all times, regardless of the cost. This, of course, is another way of saying that the sentencing of the accused in this case should provide that message to the public.
PRINCIPLES TO BE CONSIDERED
Generally speaking, when considering an appropriate sentence in a case such as this, one must consider the need for specific and general deterrence, and for the rehabilitation of the accused. As well, the sentence should be such that it carries with it a denunciation of the crime and the abhorrence by society of child sexual abuse.
However, the facts in this case are unique, because there has been a very long passage of time since the events giving rise to the offences. There is no evidence before the court to indicate that during the 30 year period since these offences, the accused has repeated the offensive behaviour for which he has been convicted. Indeed, there was sworn character evidence at trial which painted a glowing picture of the accused as a dedicated, hard‑working, compassionate and effective priest. None of these witnesses believed that the accused was capable of committing the offences with which he was accused, because nothing in their experience with him gave them any cause for complaint. This testimony was mirrored in the over 250 letters submitted to the court by the defence at the sentence hearing.
I conclude therefore, that in this case there is no need for specific deterrence of this accused, nor need I concern myself with his rehabilitation. He has apparently achieved his own rehabilitation, and has, since at least 1971, led an exemplary life.
Unfortunately for the accused, public deterrence and enunciation are very important aspects of sentencing for offences involving the sexual abuse of children, especially in circumstances where the offender is in a position of trust vis‑a‑vis the child, and has committed a breach of that trust.
In R. v. Gordon M., (Ont. C.A.. Nov., 1992, unreported) Abella J.A. re‑affirmed that the principle of general deterrence is a significant consideration in determining the appropriateness of a sentence, and pointed out that denunciation has also been recognized as an aspect of the sentencing process. At p. 5 of the report, she states,
“The public can logically be expected to infer from the nature the sentence the extent to which a court views as serious, certain conduct by a given individual. If the presence or absence of denunciation can be inferred from a sentence, then the debate over whether denunciation is a valid aspect ‑ as opposed to a valid objective ‑ of sentencing merges with the observation that one of the instructive messages the public is likely to take from a sentence it views as deterrent, is that it is also denunciatory. The converse proposition is equally true. Sentences which appear on their face to be exceptionally lenient in the circumstances can be presumed to generate neither deterrence nor denunciation”.
There is no doubt, in my view, that this accused was in a position of trust with the complainants and for that reason his offences are more serious, involving as they do, a substantial and abhorrent breach of that trust. Moreover, I disagree with the submission of defence counsel that the accused was not in a position of control over these complainants in the same manner as were the Christian Brothers at the Mount Cashel orphanage in Newfoundland. To the contrary, it is my view that the accused and his colleagues at St. John’s school were in as much of a control position over the inmates, if not more, than were the brothers at Mount Cashel. The students at St. John’s were supervised almost every waking minute of the day, whether at play, in school, or during meal times, and even while having a shower in the evening. They had been sent there as a result of juvenile delinquency, and were expected by the community to conform to a rigid regime of discipline. It was their understanding that complaints would likely result in harsh reprisal rather than resolution. In the Mount Cashel cases this element of control over the victims was considered to be an aggravating factor, (see R.v. Kenny, (No.4) 1991 95 Nfld. and P.E.I.R. and A.P.R.), because “the utter helplessness and sense of unfairness, when combined with the confusion and sense of revulsion, if not fear, which must be felt by young boys caught in such a situation, details a psychological horror story” and greatly increases the seriousness of the assault. I agree with this view.
Lastly, the sentence must reflect the gravity of the conduct which forms the subject of the offence or offences, and the revulsion and abhorrence of society to such conduct. Concern must be had for the corrupt effect which such conduct may have upon the young; R. v. Clubb (1984) 20 O.A.C.157.
There are mitigating factors which I must consider in sentencing the accused. They are as follows:
(a) The accused has no criminal record, either preceding or post‑dating the offences which occurred so long ago.
(b) The accused has, since the time of the offences, shown that there is no need for his personal deterrence, nor for rehabilitation. In fact, as the character evidence and the letters of support indicate, he has since dedicated his life to the service of his church and his fellow man, and has done so with distinction.
(c) Apart from the assault on S., there was no violence committed by the accused on his victims.
(d) There was no effort made by the accused to threaten the victims to keep silent, or to force or coerce his victims (although) the situation in which the victims found themselves might well be considered inherently coercive, see R. v. Hindley‑Smith 1988 Ont. C.A. unreported).
(e) At the time of these offences the accused was a young man without any special training in handling youthful offenders, and was a person of some immaturity. As noted in
(b), as a mature priest he has not repeated his offensive behaviour.
(f) The fact that the sexual offences were not carried out over a long period of time, but at most over a period not exceeding two and one‑half months.
(g) As a result of these convictions the reputation he has carefully built over the years will suffer serious damage, irrespective of any action which may or may not be taken by his superiors in the Church.
(h) He has already suffered a great deal of stress, arising from the charges brought against him, which caused or contributed to a serious heart attack with consequent permanent damage to his heart. He is now at risk if exposed to further stressful situations.
(i) With respect to S., the wish of that victim that the accused not be incarcerated for the assault on him.
(j) The impact statements of the two other victims do not attribute their unhappy lives solely to the accused, but also to the activity of others at the school.
I have already mentioned some of the aggravating factors which I must consider, but will summarize them.
(a) The breach of trust by a person who was in custody and care over his victims, a Christian Brother upon whom they had a right to rely.
(b) The fact that the accused was in a position of unusual control over his young victims, as they were compulsory inmates in his dormitory, and, from their perspective, had no recourse to help without the risk of being punished for speaking out.
(c) The effect on the victims, as disclosed in their impact statements, coupled with the fact that they have lived with these effects for over 30 years.
(d) The nature of the offences.
Counsel for the Crown submitted to the Court for consideration a long list of recent sentencing cases involving sexual abuse of children where there had been sexual intercourse. The sentences imposed by the court in the cases listed were, with one exception in the penitentiary range. While these cases have some relevance to the case at bar, insofar as general sentencing principles are concerned, they are not particularly helpful when one is attempting to determine the range of sentences for sexual abuse not involving intercourse.
I was also provided with a summary of sentences in cases of sexual assault not involving intercourse. The sentences for these offences are, in several cases, substantially below the penitentiary level. It is clear from my review of these cases that there is a broad range in the sentences handed down for offences of this nature. Nevertheless, the sentence imposed in every case must be fit and proper having regard to the offence and the offender; R. v. Lysack (1988) 26 O.A.C. 338.
Having regard to the principles of sentencing in cases of child sexual abuse set forth in R.v. Gordon M, supra, and the passage therein cited from the decision in R.v. Fraser (1987) 20 O.A.C. 78 (C.A.), at p. 80 to the effect that absent exceptional circumstances the imposition of a suspended sentence in such cases is inappropriate, I must consider whether such circumstances exist in the case at bar.
Counsel for the defence urges that such circumstances do exist, relying on the decision in Lysack, supra. It is true that there are similarities in the circumstances of the accused in that case and the case at bar, but there all similarity ends. The offences are substantially different. In Lysack, the touching was fleeting and transient, unlike the offences of Mr. Morrissey. In that case there was no evidence of the children suffering ill effects. In characterizing the offences, the court stated that “the assaults were not nearly as grave as most of the offences of this nature that come before the courts”. In addition, it was felt that by reason of his ill health, the accused might not survive a period of incarceration. I have also had regard to the decision of Charron J.C.O, in R.v. Huot (1992, Ont. Ct. Gen. Div., unreported), which is a case strikingly similar to the case at bar, but where one of the offences committed was sodomy.
While I am of the view that were the offences to have been committed in the recent past, a penitentiary term would have been appropriate for the offences committed by this accused, given the mitigating circumstances that I have outlined above such a disposition is not now called for.
At the same time, those circumstances are not so exceptional as to warrant a suspended sentence on these serious charges.
I have considered the question of totality of sentences in reaching my conclusion as to the fit and proper sentence for the accused under all the circumstances.
Accordingly, the sentence of this court will be as follows;
On count No. 1 six months in jail
On count No. 2 twelve months in jail, concurrent to count No.1
On count No. 6 twelve months in jail, concurrent to count No.1
On count No. 3 six months in jail consecutive to count No.2
On count No. 7 one month in jail concurrent to counts No. 1, for a total sentence of eighteen months.