



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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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 step-daughter), 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).

(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 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 judges 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 judges 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.
[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 judges conclusion.  I will also outline the defence and Crown
    applications at trial and the trial judges 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 appellants submissions.  In dealing
    with these submissions I will follow the order of argument contained in the
    appellants factum.  In relation to the conviction appeal, I deal with each of
    the appellants 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.


II.

Background

A.

The evidence of the Crown and defence witnesses and the trial
        judges conclusions


1.

The charges relating to Jerome Myre and Robert Roussell



Crown witnesses
[7]

The Crown called the complainants, Jerome Myre (Myre)
    and Robert Roussell (Roussell), and all four of their parents.  The following
    summary is a combination of their evidence.
[8]

The appellant became the parish priest for St.
    Mathieus parish in Sudbury on July 1, 1979.  At the time, Myre was nine years
    old and Roussell was almost twelve.  The appellant became close to them and to
    their families.  Myre and Roussell later became altar boys at the appellants
    invitation.
[9]

Myre and Roussell testified that the appellant
    gave them little pats on the bum while they put on their robes for mass.  Roussell
    also alleged that the appellant would rub his fingers on the outside of [his]
    pants between the crack of [his] bum, leave his hand on his bum for two
    seconds and hug him.  Roussell said that this was plainly visible to Myre.
[10]

Roussell alleged that the appellant told him
    that he was a doctor and performed checkups on him in the rectory.  The
    appellant would have Roussell undress and would do pat downs of his body,
    including fondling his testicles and penis.  He told Roussell not to tell
    anyone about these checkups.  The checkups happened at least ten times and
    stopped when the appellant moved away to LAnnonciation parish in 1982.
[11]

On one occasion, when Myre and Roussell were
    approximately 11 and 13 years old, respectively, they and another alter boy, R.M.,
    attended an overnight party at the rectory at St. Mathieus.  The appellant
    allegedly supplied them with beer and they became intoxicated.  No sexual
    impropriety was alleged on this occasion.
[12]

After the appellant moved to LAnnonciation, he
    sometimes picked Roussell up after school.  Roussell would hang out with him at
    the rectory, smoking and listening to music on his stereo.  In early 1983, the
    appellant invited Myre, then 12, and Roussell who was 14, to a weekend party
    that spanned two nights.  The appellant said that there were only two beds and
    that one of the boys would have to sleep with him each night.  He supplied both
    boys with alcohol and they both got drunk.  Roussell did not recall how he got
    to bed that night but he remembered waking up naked in the appellants bed. 
    The appellants penis was in Roussells mouth.  He had ejaculated but continued
    to rub his penis along Roussells mouth and teeth.  Roussell also alleged that
    the appellant kissed him all over his face and fondled his genital area.
[13]

The next day, Roussell and Myre spent most of
    the day out of the rectory playing with friends in the neighbourhood.  In the
    evening, both boys went back to the rectory and again got drunk.  While they
    were lying at opposite ends of the couch with their hips parallel to each
    other, the appellant suggested a game.  He reached over from behind the couch
    and undid both boys pants.  With their penises exposed, the appellant put each
    boys hand on the others penis.  The appellant placed his hands over theirs
    and moved their hands up and down.  They were all laughing.  Roussell passed
    out on the couch.  He woke up the following day still on the couch.
[14]

The appellant helped Myre into bed and crawled in beside him.  He
    fondled Myres penis and told him its okay in French.  Myre could tell by
    the way the sheets were moving that the appellant was touching his own penis. 
    When the appellant stopped, Myre tried to get out of bed but the appellant
    pulled him back and fondled him again.
[15]

The next morning, the appellant left for mass.  Myre
    went into the kitchen and told Roussell what had happened.  Roussell said that
    something had happened to him, too.  Myre got very upset at Roussell for not
    having warned him.  Roussell said that he may have told Myre he thought he was
    dreaming.  Myre testified that Roussell said either that he thought it was a
    dream, or that he wished it was a dream.
[16]

That afternoon, the appellant drove Roussell and
    Myre home, dropping Roussell off first.  He went inside Myres house and
    chatted with Myres mother.  When the appellant left, Myre told his mother that
    the appellant had touched him inappropriately.  Myres mother said that Myre would
    not be going over to the appellants place anymore.
[17]

Roussell also told his mother that the appellant
    had done something to him, although not immediately.  A while after the party,
    the appellant called Roussells house and asked if he could see Roussell.  Roussell
    told his mother that he did not want to see the appellant anymore.  When she
    asked why, he said that something had happened.  His mother started to cry.
[18]

A short while later, Myre had a fit in the
    school yard and was sent to see the principal.  Myre told the principal that
    something had happened when he was with the appellant.  The principal called Myres
    mother.  She called the police and alleged that her son had been molested by
    the appellant.
[19]

Both sets of parents and their boys met at the Myre
    residence.  The main floor of the Myre house is open concept.  It is not a
    large house.  According to their evidence, which was accepted by the trial
    judge, they met at the dining room table for a brief period with Officer Kingsley
    and his assistant, Constable Andrews.
[20]

To everyones surprise, the appellant and Bishop
    Dionne arrived.  The Bishop took charge of the meeting.  He told the appellant
    not to say anything and insisted on interviewing Myre and Roussell individually
    and privately upstairs.
[21]

Upstairs, the Bishop asked the boys to tell him
    what had happened, like in confession.  After each boy had done so, the Bishop
    asked him if he had told anyone else the details.  Myre said that he had told
    his parents that the appellant had touched him, but that he had not provided
    any details.  Roussell said that he had not told anyone the details of what
    happened.  The Bishop told the boys not to tell anyone else.  He then said that
    he would get help for the appellant and that they should pray for him.
[22]

During the Bishops interviews with the boys,
    the parents and the police officers sat downstairs with the appellant.  Andrews
    may have left the table briefly to have a cigarette.  Mrs. Roussell was very
    emotional.  She confronted the appellant about what he had done to her son. 
    The appellant mostly kept his head down and did not say anything.  He may have
    been crying.
[23]

The Bishop came downstairs and announced that he
    was satisfied nothing had happened, that both boys had just been drinking.  He
    said that he would ensure the appellant received treatment.  As the police were
    about to leave, they asked the Myre family if they wanted to press charges.  Myres
    father asked him if he wanted the appellant to go to jail.  Myre had considered
    the appellant to be his best friend and told his father he did not want charges
    to be laid.  The Roussell family also decided not to press charges.
[24]

One of the parents claimed that the theme of the
    discussion with Kingsley was that they were all Catholic and should try to
    forget the incident and not lay charges.  Further, the parents testified that
    at the conclusion of the meeting one of the officers said that they would be
    advised of the appellants treatment progress.  However, no follow up was ever
    conducted by police or the parents.
[25]

After this investigation, the appellant voluntarily
    went to Southdown facility near Aurora, Ontario for an assessment and therapy,
    where he stayed from May to November 1983.  The Southdown facility offered
    therapy for addictions and counselling for nervous breakdowns and personal
    problems, and gradually sexual abuse and physical bullying.  There was no
    evidence at trial whether Southdown offered sexual abuse therapy in 1983.
[26]

In 2007, Myre decided that he would report what
    had happened to him to the police.  He called a few people, including Roussell,
    with whom he said he had not spoken since the meeting at his home in 1983, and
    told him that he was going to be reporting the allegations to the police.  Roussell
    also decided to make a report.  Soon after, the appellant, who was still a
    priest, was arrested.
Defence witnesses
[27]

In relation to Myre and Roussells allegations,
    the defence called Officer Kingsley.  Kingsley testified that he attended at
    LAnnonciation rectory in response to a reported allegation of sexual assault. 
    He assumed the date was April 7, 1983 as he had a notebook entry on this date,
    but his foolscap notes on which he would have written the details had been
    destroyed.  He testified that he found four to six male youths, aged 10 to 13,
    who were all red in the face as if they had been running around.  He recalled
    seeing a Texas Mickey of what appeared to be whiskey.  There was a quantity
    of whiskey missing from the bottle and he could detect liquor on the breaths of
    the youths.  He spoke to the priest briefly and asked him to leave the room. 
    Kingsley then spoke with the boys and recorded their information on his
    foolscap.  He believed most of the boys reported having been fondled.  No
    further investigation was done at this time, as he wanted to speak to the boys
    when they were sober.  Kingsley said he recalled Myres and Roussells names,
    but conceded that he may have remembered their names from the later meeting he
    had with them at the Myre residence.
[28]

Kingsleys evidence in relation to the meeting
    at the Myre residence, as summarized in the appellants factum at para. 19, is
    as follows:
Sometime after the call to police, there was a
    meeting at the Myre residence.  Myre and his parents, Roussell and his parents,
    and two police officers, Sergeant Kingsley (Kingsley) and Constable Andrews
    (Andrews) were present.  Kingsley believed that there were three or four sets
    of parents present.  The meeting was convened at the dining room table. 
    Kingsley stated that after a brief discussion among all present, he conducted
    individual interviews of each boy with their parents in private.  The only
    private rooms in the Myre house were the bedrooms upstairs, however, Kingsley
    testified that he never went upstairs.  Kingsley kept notes of these interviews
    on foolscap paper, and believed that Andrews also made notes of the information
    he relayed to him, as some of the interviews were in French, which Andrews did
    not speak.  Kingsley recalled that the boys recanted what they had previously
    said to him at the rectory on April 7, 1983, and only claimed that they had
    been drinking.  After the interviews were concluded, Kingsley stated that he
    resumed the conversation at the dining room table with all parents.
[29]

According to Kingsley, the Bishop and the
    appellant arrived after he had completed his interviews and the Bishop took
    charge.  The Bishop spoke to Kingsley in private but did not ask him not to
    proceed with charges.  Kingsley did not recall the Bishop conducting any
    interviews of the boys.  Kingsley testified that charges were not laid because
    he did not have evidence to support a charge relating to sexual impropriety.
[30]

The defence also called Myres aunt who cleaned
    the rectory at St. Mathieus parish once a week, usually Tuesday or Wednesday,
    from about 9:00 a.m. to about 3:00 p.m.  She testified that she never saw any
    young people at the rectory while she was there, never saw any empty beer
    bottles or any other kind of alcohol while she was there, never saw the
    appellant smoke, never saw signs that anyone else had been smoking in the
    rectory, never saw childrens clothing and never saw signs that anyone but the
    appellant had slept at the rectory.
The trial judges conclusion
[31]

The trial judge acquitted the appellant in
    relation to the bum pats on Myre because he was not satisfied beyond a
    reasonable doubt that the touching was of a criminal nature.  The trial judge found
    the appellant guilty of one count of indecent assault in relation to Roussell corresponding
    to the checkups he performed while still at St. Mathieus parish.  The trial
    judge also found the appellant guilty of one count of sexual assault and one
    count of gross indecency in relation to each of Myre and Roussell corresponding
    to the events at the second sleepover.


2.

The charges relating to Dennis Landriault


Crown witnesses
[32]

The Crown called the complainant, Dennis
    Landriault (Landriault), and his father.
[33]

Landriault went to the police after receiving a newspaper
    article from his father about the appellants arrest.  Landriaults family was
    also very involved with the church.  In 1974, when the family was living in
    Espanola and Landriault was 15, the appellant was the assistant parish priest. 
    Landriault saw the appellant at least three times a week for choir practices
    and weekly services.  The appellant took Landriault to some of his hockey
    games, and took him to Sudbury a couple of times where they went to movies and
    restaurants.  The appellant would also come to Landriaults home frequently for
    dinners, card games and get-togethers.  Sometimes the appellant would stay
    overnight although the rectory was close by.
[34]

Landriault said that the first incident took
    place in his upstairs bedroom which he shared with his brother.  One night the
    appellant undressed and crawled into bed beside Landriault.  He pulled Landriaults
    underwear or pyjamas down, simulated intercourse between Landriaults legs and
    ejaculated.  Landriault was terrified and confused.  He blamed himself.  The
    incidents continued when Landriault moved into the basement which had no walls
    or door.  During some of the incidents, the appellant also fondled Landriaults
    penis and there were times when he made him ejaculate.  Landriault was
    embarrassed and ashamed.  At one point, shortly after the first incident, he
    decided to tell his mother.  She went into a rage and told him that stuff
    like that did not happen.
[35]

Sometime in 1976 the family moved to Massey,
    about 32 kilometres from Espanola.  The appellant continued to visit the family
    and to occasionally take Landriault on outings.  According to Landriault, the
    appellant sometimes stayed over and, when he did, the same type of incidents
    would occur.  Landriaults father, who was also called by the Crown, had no
    specific recollection of the appellants staying overnight when the family
    lived in Massey.
[36]

Although Landriault said that the appellant ejaculated
    on most occasions, and ultimately conceded that there would have been ejaculate
    on the bed sheets, he agreed his mother never mentioned finding semen on his
    sheets, even after he claimed to have disclosed the incidents to her.
[37]

At trial, Landriault testified that the sexual
    incidents ceased when he was 16, 17 or older, while in cross-examination he
    admitted that he had given a different timeline to police such that the
    incidents ceased when he was 14 or 15 years old.
[38]

In addition to the incidents in Landriaults
    home, Landriault testified that two incidents of sexual assault took place in
    the rectory of St. Louis de France church in Espanola.  At trial he maintained
    that he had a clear recollection of two distinct incidents whereas at his
    preliminary inquiry he could not recall if anything sexual had happened when he
    was at the rectory the second time.  Landriault also said that the frequency of
    the incidents was more than five and less than fifty times.  He had earlier
    told police there were 18 to 20 incidents.
[39]

Landriault said he cared for the appellant and
    when he went away to college in Toronto he stopped by to see the appellant at
    his new parish in Sudbury.  He said he hoped he could still have a friendship
    with him.  Landriault had a few drinks and decided to stay over.  At trial, Landriault
    said that the appellant ended up in the same bed with him and tried to do the
    same things as before.  This time Landriault stopped him and left.  This was
    inconsistent with Landriaults statement to police where he said that the
    appellant wanted him to stay but that he refused.
[40]

Landriault testified that he told his mother
    again as well as his father about the appellant in 1990 or 1991.  Landriaults
    father testified that his son told him that something untoward and sexually
    inappropriate had occurred.
[41]

Landriault provided the police with names of
    other persons whom the appellant socialized with, including L.B.s name.
Defence witnesses
[42]

The defence did not call any witnesses in
    relation to Landriaults allegations.
The trial judges conclusion
[43]

The trial judge convicted the appellant of one
    count of indecent assault and one count of gross indecency for conduct
    occurring in the town of Espanola when Landriault was 14 to 16 years of age.  He
    acquitted the appellant of two counts in relation to conduct that took place after
    Landriault moved to Massey, when Landriault would have been 17 or 18 years old,
    as he was not convinced beyond a reasonable doubt that there was a lack of
    consent at that time.


3.

The charges relating to L.B.


Crown witnesses
[44]

The Crown called the complainant, L.B.  L.B. testified
    that he got a call from Officer Delwo who was investigating other complaints of
    sexual abuse by the appellant.  Although he had not really wanted to come
    forward, upon getting the call he decided to do so.  The only person L.B. had
    ever told about his abuse, before being interviewed by the police, was his wife
    back around 1990.
[45]

L.B. testified that between 1974 and 1979, when
    the appellant was assistant parish priest in Espanola, L.B. and his family
    lived in Espanola and he was an altar boy.  The appellant was a part of their
    family, especially as L.B.s father had been killed in a hunting accident in
    1971.  L.B. began to spend more time with the appellant as he got to know him. 
    L.B. spent time with the appellant at the rectory as the appellant had a great
    stereo and L.B. liked to hang out and listen to music with him.  L.B. was about
    15 years old and the appellant was in his thirties.  The appellant took L.B. on
    car rides and on trips to Sudbury and North Bay, and bought him shoes and a
    guitar.  At least once the appellant gave L.B. some beer.
[46]

The appellant also gave L.B. massages in his
    bedroom in the basement of the B. residence.  The massages started off
    innocently enough at first but did not always end up that way.  During some of
    the massages, the appellant touched L.B.s penis and L.B. would get an
    erection.  The appellant also got an erection.  The appellant would sometimes
    rub himself against L.B.  Once, the appellant stroked L.B.s penis until he
    ejaculated and on one occasion the appellant kissed L.B. on the lips.  L.B.
    could not recall precisely the number of times that this happened, but he
    testified that there were many innocent massages, and fewer than five
    inappropriate massages.
[47]

The sexual incidents ended after the appellant
    took L.B. on a weeklong trip to Quebec.  On one of the two specific nights L.B.
    remembers, they each had their own single bed.  L.B. was nervous as hell that
    something would happen.  The appellant came over to L.B.s bed.  L.B. said he
    was not feeling well and the appellant left him alone.  The second night, they
    both were drinking.  L.B. was lying on the only bed in the room and the
    appellant gave L.B. a massage.  L.B.s penis was exposed.  The appellant
    stroked it and then started to masturbate himself.  He grabbed L.B.s hand and
    put it on his penis.  The appellant ejaculated.  The next morning, L.B. felt horrible
    and ashamed.  He told the appellant that he did not like what was happening and
    asked for it to stop.  Nothing further ever happened.
Defence witnesses
[48]

The defence called L.B.s mother.  After her
    husband was killed in a hunting accident in 1971 she got to know the appellant
    and he came to their home a lot.  About every second week they would play cards
    in the evening.  She did not recall the appellant ever leaving for any period
    of time to go downstairs to her sons bedroom.  Landriaults father, a witness
    who testified for the Crown and who was also in attendance at the card games,
    did not recall the appellants excusing himself to visit L.B. or being absent
    for any extended periods, either, but he testified that he would not
    necessarily have noticed.
[49]

L.B.s mother testified that the appellant did,
    however, go to L.Bs bedroom in the basement when he visited after school and
    he helped her son decorate his room.
Trial judges conclusion
[50]

The trial judge convicted the appellant of one
    count of gross indecency and one count of indecent assault in relation to the
    massages in the basement, and one count of gross indecency and one count of
    indecent assault in relation to the trip to Quebec.


B.

Applications at trial


[51]

Prior to the start of the trial, defence counsel
    (who is not counsel on this appeal) brought an application to have the charges
    concerning Myre and Roussell stayed on the basis that Officer Kingsleys
    detailed foolscap notes, the general occurrence report and the occurrence card
    had been lost or destroyed.
[52]

The only record of the 1983 investigation at the
    time of trial was a single page from Kingsleys notebook.  He testified that it
    had been his practice to carry a binder with foolscap paper that he would use
    to keep detailed notes of his investigations, including informal statements. 
    His practice was usually to staple these notes to the general occurrence report. 
    In addition, he transcribed abbreviated highlights from his foolscap notes into
    his police notebook, such as the address he attended, the name of one or two
    people that he dealt with and the occurrence number.  Kingsley also testified
    that there would have been a small occurrence card created at the time that Mrs.
    Myres call was received by the police.  This card would have contained
    information pertaining to the location, the type of complaint, who made the
    complaint, the address, the telephone number, who was dispatched to the scene,
    how the investigation was concluded and the occurrence number.
[53]

Sergeant Delwo, the officer in charge of the
    2007 investigation, testified that because the complaint in 1983 was sexual in
    nature, a general occurrence report would have been created.  This report would
    normally contain the name of the complainant and the victim, any suspect
    information and a narrative of the police officers response and findings. 
    Kingsley confirmed that the general occurrence report would include information
    on whether a decision was made not to prosecute.  Kingsley further stated that
    the reason he remembered this incident so well was that it was his only
    investigation involving a member of the clergy.  At the time of trial,
    Constable Andrews had Alzheimers disease, and his notebooks could not be
    located.  Records and notes produced as a result of a 1983 investigation, which
    did not result in charges being laid, could be destroyed as early as 1993.
[54]

The trial judge dismissed the application for a
    stay in relation to Myre and Roussell without prejudice to the appellants
    right to renew it at trial.
[55]

At the end of the trial, the defence renewed its
    motion for a stay of the charges relating to Myre and Roussell and sought a
    further stay to prevent an abuse of process on the basis that the 1983
    investigation resulted in a diversion resolution, which was an agreement not to
    prosecute the appellant.  The trial judge dismissed those applications.
[56]

The Crown brought a similar fact evidence
    application, requesting that the evidence from each count be applied to the
    other counts.  With the exception of the evidence of R.L., a complainant in
    relation to whom the appellant was subsequently acquitted, the trial judge
    allowed the Crowns application.


III.

Analysis


A.

The conviction appeal



[57]

The appellant makes two overall submissions. 
    First, he 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.
[58]

The second overall argument counsel for the
    appellant raises is that the trial judges reasons for judgment are inherently
    flawed and that the trial judge employed result-oriented reasoning.
[59]

The appellant also raises a number of specific
    grounds of appeal in support of his two overall arguments.  In particular, the
    appellant submits that:  (1) the trial judge misapprehended significant aspects
    of the evidence; (2) the trial judge applied a different standard of scrutiny
    to the evidence of the Crown and defence witnesses; and (3) the trial judge
    relied on material not in evidence.  The appellant submits that these
    evidentiary errors tainted the trial judges analysis with respect to the defences
    two applications to stay the proceedings and the overall reasons for
    conviction.  I will deal with these specific grounds of appeal first.  I will
    then summarize my conclusions with respect to the two overall grounds of appeal.



1.

Misapprehensions of the Evidence



[60]

A misapprehension of the evidence may relate to
    a failure to consider evidence relevant to a material issue, a mistake as to
    the substance of the evidence, or a failure to give proper effect to evidence:
R.
    v. C.L.Y.
, [2008] 1 S.C.R. 5, at para. 19;
R. v. Lohrer
, [2004] 3
    S.C.R. 732, at paras. 1-2;
R. v. Morrissey
(1995), 22 O.R. (3d) 514
    (C.A.), at p. 538.  To set aside a conviction on the basis that the trial judge
    misapprehended the evidence, the appellant must meet a stringent standard.  The
    misapprehensions must be of substance rather than detail, they must be material
    rather than peripheral to the judges reasoning and the alleged errors must
    play an essential part in the reasoning process, not just of the narrative.  A
    mere misstatement or inaccuracy in the trial judges treatment of the evidence
    does not constitute a reversible error:
Lohrer
at para. 2;
Morrissey
at p. 541;
R. v. T.(T.)
(2009), 68 C.R. (6
th
) 1 (Ont. C.A.),
    at para. 33.
[61]

The appellant submits that the trial judges
    reasons for judgment demonstrate that he misapprehended the evidence on a
    number of material issues.  The list of impugned factual references appears to
    fall into three main categories: facts pertaining to the stay application for
    lost records; facts pertaining to the stay application for abuse of process
    because an agreement had been reached not to prosecute; and facts concerning
    the evidence of the four complainants.  The majority of the alleged misapprehensions
    relate to Kingsleys evidence.
Alleged misapprehensions of fact
    pertaining to the lost records
[62]

The appellants position at trial was that the
    destruction of the police records prejudiced his ability to make full answer
    and defence and that, as a result, the charges should be stayed.  In dismissing
    the appellants application for a stay based on lost records, the trial judge
    had to make numerous factual determinations regarding what material would
    actually have been created in 1983 and whether, if it existed, it would have
    impacted the appellants right to make full answer and defence.  The appellant
    submits on appeal that the trial judge made material misapprehensions of the
    evidence and in particular that he misapprehended Kingsleys evidence, and that
    this affected his reasoning process in dismissing the defences stay
    application.
[63]

First, the appellant challenges the trial
    judges findings that any notes Kingsley took at the rectory would have
    contained tombstone information  the names of the boys, their dates of birth
    and whether the priest had done anything to them  and his finding that
    Kingsley did not conduct a formal interview of the boys.  The record, however,
    shows that Kingsley said precisely what the trial judge attributed to him.
[64]

Second, the appellant challenges the trial
    judges conclusion that many complaints Kingsley attended upon did not result
    in a general occurrence reports being prepared even if he conducted
    interviews.  In cross-examination, however, Kingsley agreed that if an
    allegation was unfounded or if it was a false alarm, etc., a general occurrence
    report would sometimes not be filled out.
[65]

Third, the appellant impugns the trial judges
    conclusion that Kingsley did not interview the priest at the rectory of LAnnonciation.
     Kingsley, however, said exactly that  that he only spoke briefly to the
    priest and that he did not ask the appellant for a statement even though his
    training taught him that it would have been a good time to have done so.
[66]

Fourth, the appellant challenges the trial
    judges finding that it was more likely that the second officer at the Myre
    residence, Officer Andrews, wanted to lay sexual assault charges against the
    appellant and not, as Kingsley said, charges for giving liquor to minors.  This
    was also a conclusion founded on the facts.  Kingsley agreed that officer
    Andrews wanted to lay charges.  One of the parents, Roussells father, also
    testified that Kingsley had said the English officer wanted to lay charges
    against the appellant.  Their entire reason for being at the Myre residence was
    to investigate the sexual assault allegations.  The trial judge was entitled to
    conclude that the charges officer Andrews wanted to proceed on related to
    sexual assault.
[67]

Fifth, the appellant questions the trial judges
    conclusion that it was extremely unlikely that everything could have occurred
    within the time estimate Kingsley gave for the length of the meeting at the Myre
    house, namely 1 to 2 hours.  Kingsley said he was aware at the time of the
    meeting that he should not rush the investigation; he would have sat down with
    everyone to help put them at ease; he would have had to interview all of the
    boys slowly and once the first boy proved to be reluctant, proceed with the
    interviews even more slowly; and that after the interviews, he sat around with
    everyone prior to the Bishop and the arrival of the appellant.  The trial judge
    justifiably questioned whether all of this could be done within the time period
    Kingsley gave.  Indeed, although he said he may not have taken as much time as
    he should have, Kingsley acknowledged that doing all of that would have taken a
    long time.
[68]

Sixth, the appellant takes issue with the trial
    judges finding that it was possible that Kingsley was mistaken about the boys
    recanting their allegations. The trial judge concluded that the Bishops declaration
    that the appellant had said nothing happened, coupled with Kingsleys testimony
    that he was devoutly religious, was deferential to the clergy and had hoped he
    would not have to charge a priest, could have influenced the officer to now
    believe that the boys did recant back in 1983.  Indeed, Kingsley admitted that
    it was possible he could have been so influenced.
[69]

While the trial judge misapprehended the
    evidence in some minor respects concerning Kingsleys note-taking practice and
    whether pages were stapled to the general occurrence report, these errors do
    not affect the validity of his exercise of discretion not to grant a stay.  Kingsley
    testified that he had an independent recollection of conducting this
    investigation and he gave his version of events.  The trial judge reviewed all
    of the evidence.  Faced with the evidence of the six Crown witnesses (Roussell,
    Myre, and their parents) and the contradictory evidence of Kingsley, the trial
    judge gave many reasons why he accepted the evidence of the complainants.  They
    provided significant detail; their parents acknowledged errors of judgment they
    had made at the time; they were credible; they admitted when they had memory
    gaps; and they were not shaken on cross-examination.
[70]

Although the trial judge assumed Kingsley was
    impartial and said he was careful and frank, the trial judge was rightly
    concerned about his reliability.  Many things that Kingsley said he did, did
    not make sense.  For example, he said he went to the rectory to speak to the
    parish priest and saw young boys who had been drinking, boys who said that they
    had been fondled, yet he did not recall calling the Childrens Aid Society, did
    not interview the boys, and did not interview the priest.  At the same time, he
    testified that he had carefully interviewed each of Myre and Roussell at the Myres
    home in a private room.  The only private rooms in the home were the upstairs
    bedrooms.  Yet Kingsley said he did not go upstairs.  Kingsley testified that Myre
    and Roussell were among the boys present at the rectory when he went to speak
    to the priest.  He conceded in cross-examination, however, that it was possible
    he recalled their names from the meeting at the Myre residence as opposed to
    being at LAnnonciation.
[71]

The appellant submits that the information
    recorded by Kingsley and Andrews during their investigation was very important
    and that the trial judge did not appreciate its nature and significance. The
    appellants submissions are an indirect way of attacking the trial judges
    refusal to stay the proceedings on the basis that the appellants rights under
    section 7 of the
Charter of Rights and Freedoms
were breached. The legal
    principles for determining if there is a section 7
Charter
breach in the
    context of lost information and the guidelines for determining the appropriate
    remedy can be briefly stated. When evidence is lost or destroyed the Crown must
    satisfy the trial judge that the evidence has not been destroyed or lost due to
    unacceptable negligence.  Section 7 has been breached if the trial judge finds
    that the evidence was lost due to unacceptable negligence.  If the trial judge
    finds that there was no unacceptable negligence then the Crown has not breached
    the duty to disclose.  The onus then shifts to the accused.  If the evidence was
    not lost due to unacceptable negligence then, in order to establish a breach of
    section 7, the accused must demonstrate that actual prejudice resulted from the
    loss of the evidence. If the trial judge determines that there has been a
    breach of section 7 (either through unacceptable negligence by the Crown or
    actual prejudices being caused by the loss of the evidence), the trial judge
    must then determine the most appropriate remedy under section 24(1).  A stay of
    proceedings is only appropriate in the clearest of cases when the following
    conditions are met:  (a) the prejudice caused will be manifested or perpetuated
    through the conduct of the trial or its outcome; and (b) no other remedy is
    reasonably capable of removing the prejudice.  A stay of proceedings is a
    discretionary remedy and is ordinarily entitled to deference on appellate
    review.  An appellate court will only be justified in interfering with the
    decision if the trial judge misdirected himself or herself on the law or if the
    decision is so clearly wrong as to amount to an injustice.  See
R. v. Dixon
,
    [1998] 1 S.C.R. 244, at paras. 38-39;
R. v. Carosella
, [1997] 1 S.C.R.
    80, at paras. 48-50;
R. v. La
, [1997] 2 S.C.R. 680, at paras.
16-28;
R. v. Sheng
(2010), 254 C.C.C. (3d) 153 (Ont. C.A.),
    at paras.
30-42.  The appellants submissions give me
    no reason to conclude that this stringent test has been met.  Moreover, the
    trial judges reasons indicate an appreciation of the nature and significance
    of the lost evidence.
Facts pertaining to the stay
    application for abuse of process
[72]

As indicated, the trial judge dismissed the
    appellants assertion that trying him on the charges in relation to Myre and Roussell
    was an abuse of process because of an agreement not to prosecute him.
[73]

Contrary to the appellants assertion, there is
    no evidence that the police discussed with the parents of Myre and Roussell the
    implications of laying charges, nor does the evidence indicate the boys
    parents were aware of the extent of Myre and Roussells allegations.  Kingsley
    said he had no basis to lay charges in relation to sexual abuse and he did not
    testify as to any conversation with the parents about whether to lay charges.  Myre
    and his father testified that the police simply asked if they wanted charges
    laid.  The decision of whether his best friend would go to jail was left with
    12-year old Myre.  Myre understood the appellant would go to jail if he did lay
    charges, and he said no.
[74]

Kingsley did not refrain from laying charges
    against the appellant because of any agreement.  He said the boys recanted
    their evidence of sexual abuse and he had no basis on which to lay charges. 
    The Bishop said that nothing happened and the appellant would go for treatment.
     He used his position to neutralize the investigation.  While the appellant is
    critical of the trial judges conclusion that the purpose of the Bishops
    presence was to interfere in the investigation, the Bishop and the appellant
    came to the house uninvited, the Bishop took over, and, in addition to the
    Crown witnesses, Kingsley agreed that the Bishop was there to interfere.
[75]

Although the appellant challenges the trial
    judges finding that the police had not communicated to the appellant an
    agreement not to charge him if he sought treatment, there was no evidence the
    police spoke with the appellant that evening.  Neither Myres parents nor Roussells
    parents said that the police told them not to press for charges
because
the appellant would seek treatment.
[76]

The appellant questions the trial judges
    comment that the appellant remained silent during the meeting at the Myre home.
     That is exactly what the evidence indicated.  Furthermore, the trial judge
    stated, when making this remark, that acceptance by the appellant of the
    agreement not to prosecute was not a precondition in the abuse of process
    analysis.  The impugned comment can hardly be taken as a material
    misapprehension that tainted the reasoning process.
[77]

There is no evidence that the appellant
    acknowledged the Bishop as his agent.  Accordingly, there could have been no
    agreement to refrain from prosecuting if the appellant took treatment.  Indeed,
    in relation to sentence, the appellant complains, and the Crown concedes, that
    the trial judge erred in finding that the appellant was a party to the Bishops
    purpose in attending the meeting at the Myre home and in considering it to be
    an aggravating factor.  The trial judges error in his reasons for sentence,
    namely that the appellant was a party to the Bishops interference in the
    investigation, would not have undermined his conclusion that allowing the
    charges to proceed to trial would not be an abuse of process.  Indeed, it would
    have strengthened it.
[78]

The impugned factual determinations in relation
    to the abuse of process application were all supported on the evidence and were
    determinations the trial judge was entitled to make on this evidence.
Facts concerning the evidence of
    the four complainants
[79]

In this category, the appellant impugns six of
    the trial judges findings.  The Crown concedes two of them.  Specifically, the
    trial judge appears to have been mistaken when he said that Landriault was
    encouraged to touch the appellants penis.  It does not appear that the
    evidence supports this.  The trial judge also mistakenly noted that it was Robert
    Roussell who thought the appellant was masturbating by the way the sheets were
    moving during the sleepover at the LAnnonciation rectory  it was Myre who
    said this.  However, having regard to the overall substance of their evidence,
    these mistakes are inconsequential.  The trial judge did not repeat these
    mistakes anywhere else in his reasons.  They did not contaminate his overall
    reasoning process.
[80]

Although the appellant casts the next four
    impugned determinations as misapprehensions of evidence, they are more properly
    challenges to inferences the trial judge drew from the evidence.  An appellate
    court will interfere with the inference-drawing process only if the appellant
    can demonstrate that the inference-drawing process was unreasonable or was
    based on some material misapprehension of the evidence:
R. v. Jones
(2006), 81 O.R. (3d) 481 (C.A.), at para. 7.  That is not the case here.
[81]

First, the appellant challenges the trial
    judges determination that any financial motive the complainants would have had
    for fabricating these allegations would have faded over time.  The trial judge
    observed that each of Myre and Roussell could have started civil actions
    without going to the police at any time over the last 25 years and had not done
    so.  Each of Myre and Roussell had had full-time employment for a long time and
    there was no evidence of financial difficulty.  In responding to defence
    counsels argument and rejecting it, the trial judge did not demonstrate a
    material misapprehension of the evidence.  Nor is there any reason to interfere
    with the inference he drew that Myre and Roussell were not fabricating their
    complaints based on any profit motive.
[82]

Second, the trial judge commented that Myre and Roussell
    were clear in their testimony that they never attended another drinking party
    at LAnnonciation with two to five other boys during which police arrived and
    four of the boys communicated allegations of wrongful touching by the
    appellant.  The appellant submits that the trial judge erred when he commented,
    There is little reason in my opinion why Myre and Roussell would not admit to
    this drinking night at LAnnonciation with three to four other boys, especially
    if Myre or Roussell was being untruthful and fabricating instances of
    wrongdoing against the defendant.  The trial judges comment was made in the
    course of rejecting Kingsleys evidence that they were among the boys who were
    at the rectory when he went to speak to the priest and in giving his reasons
    for so doing.  The trial judge was troubled by how Kingsley could remember the
    two boys names after all these years yet could not remember the name of any of
    the other boys.  Nor could Kingsley say for sure that the appellant was the
    priest at the rectory when he attended.  The trial judges comment was not a
    misapprehension of the evidence.  A trial judge is entitled to comment on the
    evidence.
[83]

The trial judge did not misapprehend the
    evidence in finding that, given what happened the second night of the weekend
    party at LAnnonciation, it was likely the appellant did assault Roussell the
    night before.  This determination was made in the context of assessing Roussells
    evidence as a whole and the submissions of the defence that Roussell was not
    worthy of belief.  The trial judges conclusion was a reasonable inference from
    the evidence.
[84]

In relation to L.B., the trial judge reviewed
    the contradictions in his evidence as to what he wore when he went to bed.  In
    chief he stated that he wore underwear to bed as a boy.  In cross-examination,
    he said he did not remember wearing pyjamas to bed at the time of his
    relationship with the appellant but that he was not sure.  In L.B.s initial
    interview with police, he had said he probably wore pyjamas and added, Again I
    dont, I dont really remember the details.  After quoting this remark, the
    trial judge found that L.B. was consistent in his lack of memory as to this
    level of detail and did not find the evidence as to whether he wore pyjamas or
    underwear to be a contradiction or inconsistency.  Again, this is not a
    misapprehension of the evidence  it is an assessment of the evidence and a
    drawing of an inference.  The trial judge was entitled to make that assessment.
[85]

To summarize, the trial judge misapprehended the
    evidence on two points in relation to the evidence of the four complainants.  Neither
    is a material misapprehension.  Overall, the appellant has failed to establish
    that any misapprehensions of the evidence played an essential part in the trial
    judges reasoning process.  The other four impugned findings were inferences
    from the evidence that the trial judge was entitled to make.


2.

Whether the trial judge applied a different standard of scrutiny to
        Crown and defence evidence


[86]

Before dealing with this ground of appeal it is
    important to bear in mind that, in a trial which turns almost exclusively on an
    assessment of the credibility of the witnesses, the trial judge enjoys a
    significant advantage.  The trial judge has the benefit of not only hearing
    what was said but also how it was said.  In making his or her assessment of
    credibility, the trial judge has heard all of the evidence as well as the
    submissions of counsel.  An appellate court simply has a transcript and is
    guided to a selective review of the trial record on which argument is made.  In
    arriving at his ultimate credibility findings, the trial judge doubtless paid
    careful attention to what was said. .  As this court stated in
R. v. Howe
(2005),
    192 C.C.C. (3d) 480 (Ont. C.A.) at para. 59:
It is not enough to show that a different trial
    judge could have reached a different credibility assessment, or that the trial
    judge failed to say something that he could have said in assessing the
    respective credibility of the complainant and the accused, or that he failed to
    expressly set out legal principles relevant to that credibility assessment. To
    succeed in this kind of argument, the appellant must point to something in the
    reasons of the trial judge or perhaps elsewhere in the record that make it
    clear that the trial judge had applied different standards in assessing the
    evidence of the appellant and the complainant.
See also
R. v. C.R.
(2010), 260 O.A.C.
    52 (C.A.), at para. 66;
R. v. J.W.J.
, 2009 ONCA 791, at
    paras. 4 and 5;
T.(T.)
at paras. 31 and 74.
Scrutiny of Crown
    and defence witnesses
[87]

In partial support of this submission, the appellant relies on a
    statement by the trial judge during the trial that he believed that witnesses
    were presumed to tell the truth.
[88]

The trial judge subsequently corrected his
    comment and his reasons must be examined in that context.  During the examination
    in chief of L.B., the trial Crown posed questions that defence counsel objected
    to as oath helping.  After hearing initial submissions on point, the trial
    judge heard further submissions (not transcribed) and ruled, with reference to
    case law, in favour of defence counsels objection.  On a final note, the trial
    judge said:
The presumption of this court is that this witness,
    and every other witness on the commencement of the exercise, is telling the
    truth. They are here to tell the truth that is the reason for the
    administration of the oath at the beginning of their testimony, and I am going
    to, as any court would, presume that they are credible until that is placed
    into question during cross-examination, upon which, these subjects are open for
    cross-examination, to the extent necessary, re-examination.
[89]

Two days later, during submissions on another
    point, defence counsel raised a concern regarding the trial judges prior
    comment that witnesses are presumed to tell the truth.  He presented the trial
    judge with a decision of this court,
R. v. Thain
(2009), 243 C.C.C. (3d)
    230 (Ont. C.A.), and read out the following passage from para. 32:
Witnesses are not presumed to tell the truth.  The
    evidence of each witness is to be assessed in the light of the totality of the
    evidence without any presumptions except the general and over-riding
    presumption of innocence.
The trial Crown agreed.
[90]

During defence counsels submissions on the
    merits of the case, he again stated at the outset that witnesses are not presumed
    to tell the truth.  The trial judge agreed and explained what he had earlier
    meant to convey:
Your point is very, very well taken, and youre a
    hundred percent right, and what I had meant by my comment was that I dont want
    to ever get to a position where when somebody comes up and swears on a bible or
    affirms, that I am starting off with the premise that theyre lying but its an
    important distinction that youre making.
[91]

Contrary to the appellants submission, the
    trial judge did not decide this case based on a presumption favouring the Crown
    witnesses.
[92]

Unlike most cases in which this ground of appeal
    is advanced this is not a case in which it is alleged the trial judge applied
    different expectations to the evidence of the complainants and the accused. 
    The appellant did not testify.
[93]

The appellants main complaint appears to be
    that the trial judge subjected the evidence of the complainants and the defence
    witnesses to different levels of scrutiny.  In particular, the appellant argues
    that the trial judge did not assess the testimony of the complainants
    critically and resolve inconsistencies whereas his treatment of Kingsleys
    evidence was generally critical.  The appellant submits that the trial judges
    treatment of Kingsleys evidence reflects his approach to tailor his findings
    to support a conviction.  Despite the appellants acknowledgment that police
    officers have no reason to lie, he submits that the trial judge applied a
    particularly harsh standard of scrutiny to Kingsleys evidence and found that
    he had an agenda and was not independent.
[94]

I would disagree.  The trial judge subjected the
    evidence of each complainant and the defence witnesses to careful and probing
    analysis, thoroughly and objectively reviewed their evidence, conducted a
    balanced and even-handed examination of their evidence, dealt with the alleged
    contradictions and improbabilities in their evidence, addressed defence
    counsels submissions about the inconsistencies in each complainants testimony
    and fully explained why he reached his conclusions.  If the trial judge had
    applied a different level of scrutiny to the Crown and defence evidence and
    engaged in result-oriented reasoning, he would not have engaged in the careful,
    extensive examination of the evidence that he did.  Further, the trial judge
    acquitted the appellant of all of the allegations made by another complainant,
    R.L., acquitted him of one count in relation to Myre, and acquitted him of two
    counts in relation to Landriault.  That same careful standard was applied to
    the evidence of Kingsley.  So as not to interrupt the flow of these reasons,
    specific examples that refute the appellants allegation that the Crown and
    defence witnesses were subjected to differing levels of scrutiny are included just
    prior to my conclusion on the conviction appeal.
Submissions that
    the trial judge took judicial notice of dubious subject matter
[95]

The appellant also submits that the trial judge
    relied on judicial notice of dubious subject matter to resolve tensions in the
    evidence.  The appellant submits that, as a result, the trial judge applied an
    unreasonably low standard of scrutiny to the complainants evidence.
[96]

I disagree.  The trial judge did not rely on
    dubious subject matter by way of judicial notice when assessing the evidence of
    the complainants.  Rather, he drew some common sense inferences.  The decision
    of this court in
R. v. Robinson
(2009), 254 O.A.C. 171 (C.A.), at paras.
    37-41, is instructive on this point.  In
Robinson
, the appellant argued
    that the trial judge improperly took judicial notice of drug-related behaviour
    by concluding: people dont just leave [half an ounce of crack cocaine] lying
    around for no reason at all.  This court disagreed with the appellants
    characterization of the trial judges reasoning as improper judicial notice and
    held that the trial judges comment was a rational observation.
[97]

Overall, the reasons do not support the
    appellants submission of speculative analysis.  In addition to his own common
    sense, the trial judge relied upon multiple findings of fact that were
    supported by the evidence to draw the inferences he did and the impugned
    comments were either permissible or of no significance to his reasoning
    process.
[98]

Specific examples are again set out just prior
    to my conclusion on the conviction appeal.


3.

The trial judges reliance on material not in evidence and its effect on
        his conclusions


[99]

It is trite law that a trial judge must decide a
    case on the evidence and only on the evidence presented at trial.
[100]

The appellant argues that the trial judge relied
    on police statements and preliminary inquiry transcripts that were never
    entered in evidence.  During the course of the trial, defence counsel used
    transcripts of the Crown witnesses police statements and preliminary inquiry
    evidence to cross-examine them.  He provided copies to the trial judge for
    convenience.  The reasons for judgment reveal that the trial judge consulted
    and utilized portions of those transcripts which were not in evidence in his
    reasons.  The appellant submits that it is impossible to measure the extent to
    which the trial judge was influenced by this material and, further, that in
    consulting sources beyond the record, he improperly assumed the role of
    advocate.
[101]

I disagree.  I cannot accept the appellants
    submission that the fact that the trial judge looked at a witnesss police
    statement or portion of the preliminary inquiry he should not have looked at
    automatically translates into a conclusion that the appellant did not receive a
    fair trial in the absence of any indication that it somehow tainted his
    reasoning.
[102]

This was not a jury trial.  The trial judges
    extensive reasons do permit us to review the extent to which he referred to
    material not in evidence.  Having reviewed those reasons, I would conclude that
    in each instance the trial judges reference to material not in evidence was
    either not central to his conclusions or else the substance of the impugned
    reference was already in evidence elsewhere.  Examples of the appellants
    specific submissions as well as my comments are found below prior to my
    conclusion on the conviction appeal.
[103]

What the impugned
    references do illustrate is the danger of a trial judge accepting a copy of the
    preliminary inquiry transcript or a prior statement of a witness which is being
    used in cross-examination and which, of course, is not part of the evidence
    unless the prior statement is specifically adopted by the witness.  If counsel
    wish to assist the trial judge, it is preferable to give the judge a copy of
    the relevant portions of the pages used in cross-examination only and with the
    portions of the page that are not to be referred to in cross-examination
    blacked out.
[104]

I would dismiss this ground of appeal.


4.

Specific examples refuting arguments re
        differing standards of scrutiny, alleged improper judicial notice and reliance
        on material not in evidence


Whether the trial
    judge applied a different standard of scrutiny to Crown and defence evidence
[105]

In the examples below, the appellants
    submissions are italicized, while my comments are in ordinary type.  Overall
    the allegation that the Crowns witnesses were subjected to inadequate scrutiny
    while those of the defence were stringently scrutinized is rebutted.
Robert Roussell
(i)

The trial
    judge failed to address the inconsistencies and sheer improbability that Roussell
    awoke with the appellants penis in his mouth, and his mouth filled with
    ejaculate.
The trial judge did not find that the appellant put
    Roussells penis in his mouth. He found that the appellant placed his penis to
    the mouth and face of Roussell and in the process of doing so ejaculated. Nor
    did the trial judge accept Roussells evidence that the appellant attempted to
    put his penis and finger in Roussells anus. This shows that the trial judge
    carefully assessed Roussells evidence.
(ii)
The trial judge
    failed to address or resolve the inconsistencies exposed in cross-examination
    with respect to the check-ups adequately; he failed to question the reliability
    of Roussells evidence, given his inability to provide a more narrow estimate
    of the number of check-ups than between 10 and 50 times.
The trial judge addressed the variation in
    estimates Roussell gave for how often the check-ups happened.  He found the
    different estimations had to be understood in light of Roussell having clearly
    stated that he did not recall the specific number of times they happened and in
    recognition of the difficulty Roussell would have in recalling the exact number
    of times 25 years later.  He applied similarly probing analysis to each
    inconsistency and improbability that defence counsel said existed in Roussells
    evidence.  The fact that the trial judge did not accept all of Roussells
    evidence also supports the conclusion that he did not apply a different
    standard of scrutiny to the evidence.
This is not a case like
R. v. G. (M.)
(1994),
    93 C.C.C. (3d) 347 (Ont. C.A.), in which the trial judge failed to pay careful
    attention to a significant inconsistency between the complainants prior
    statement and her trial testimony in assessing her credibility.  In that case
    the complainant first wrote in a letter that she had been sexually assaulted by
    way of intercourse regularly for over four years whereas at trial she said that
    there had been one sexual assault that did not involve intercourse.  Nor was it
    a case like
R. v. Stark
(2004), 190 C.C.C. (3d) 496 (Ont. C.A.), where
    the trial judge failed to address inconsistencies that went to the core of the
    allegations.  In the circumstances of this case, the exact number of times Roussell
    submitted to check-ups by the appellant did not go to the core of the
    allegations.
(iii)
The trial
    judge justified Roussells return to the rectory the second night after being
    allegedly sexually assaulted the first night by finding that Roussell knew he
    did not have to share a bed with the appellant, which was not Roussells
    explanation.
The trial judge was entitled to consider what Roussell
    knew.  Roussell did know it was Myres turn to sleep with the appellant. 
    Further, the trial judge was responding to defence counsels submission that it
    was suspect that Roussell would return to the rectory the second night not
    knowing whether he would be assaulted again.  In addition, there were other
    reasons why the trial judge did not find it incredible that he would go back to
    LAnnonciation the second night as defence counsel submitted:  Roussell had
    already been subjected to some check-ups and he would have been attracted to
    the lure of the alcohol, cigarettes and fun.
(iv)
The trial
    judge found that Roussells evidence had a high level of credibility despite his
    conclusion that he was not a cautious, strong or careful witness when it came to
    important details or evidentiary detail and that he may have been susceptible
    to exaggeration.
The fact that the trial judge remarked that Roussell
    was not overly careful with some details, yet still found him to be generally
    credible, does not demonstrate that the trial judge did not scrutinize his
    evidence.  He did.
(v)  Mrs. Roussells evidence was that one of
    the police officers went upstairs with the Bishop to interview the boys while
    the other parents and the boys testified that was not the case.  The trial
    judge resolved the conflict presented by her evidence as more likely referring
    to the momentary absence of one of the officers during the meeting based on
    other evidence that Officer Andrews left for a cigarette.
Officer Kingsley testified that he did
not
go upstairs so this cannot be an instance of subjecting a Crown witnesss
    evidence to less stringent scrutiny than that of the defence.
Jerome Myre
(i)  The trial judge found that the appellant
    prevented Myre from leaving his bed on the second night at LAnnonciation
    without addressing Myres prior inconsistent statement on this point.
(ii)  He failed to reconcile Myres claim that
    he awoke in the appellants bed the morning following the alleged assault upon
    him, with his evidence that he left the bed during the night and slept in the
    living room.
A trial judge does not need to address each and
    every inconsistency in a witnesss evidence so long as the basis for the trial
    judges conclusions is apparent from the record:  see
Stark
at para.
    12.  In that case, the trial judge failed to address inconsistencies that went
    to the core of the allegations. Whether Myre did or did not get out of the
    appellants bed after the alleged sexual assault on him and go and sleep in the
    living room does not go to the core of the allegations.
(iii)  The trial judge failed to apply
    appropriate scrutiny to the steps that Myre took prior to contacting police in
    2007.
The trial judge addressed the defence submission
    that Myres allegations were suspect because he had called a number of people
    before he spoke to the police in 2007.  He explained why he did not view those
    calls with the degree of suspicion defence counsel would have liked him to. 
    The persons with whom Myre spoke were persons such as his grade school
    principal, who provided some counterbalance to a potential challenge that his
    evidence had been recently fabricated.
The trial judge also addressed the submission that Myre
    was motivated by a possible civil suit and explained why he did not accept this
    as a factor that undermined Myres credibility.  The trial judge observed that
    each of Myre and Roussell could have started civil actions without going to the
    police at any time over the last 25 years and had not done so.  Each of Myre and
    Roussell had had full time employment for a long time and there was no evidence
    of financial difficulty.
(iv)  The trial judge found confirmation of Myres
    evidence from the evidence given by his parents, without addressing the
    evidence that the family discussed the case prior to trial.
The meeting at the Myre home was independent of the
    alleged events of sexual abuse.  The trial judge noted that both Myre and Roussell
    were cross-examined as to whether they were interviewed by police at the
    meeting at the Myre home.  They were not cross-examined as to whether they told
    police at that meeting that the defendant had done nothing wrong to them.  The
    only person who contradicted Myres evidence as to what happened at the Myre
    meeting was Kingsley.
There was no need for the trial judge to consider
    evidence that the family discussed the case prior to trial.  In addition to
    the evidence of his parents, the trial judge found that Myres evidence was
    also supported by Roussell and his mother.  Myre testified that he had not
    discussed his evidence with Roussell prior to trial although he called Roussell
    on the eve of reporting the matter to the police in 2007.
(v)
The trial
    judge found the evidence of Myres father very credible despite rejecting his
    inflammatory and inconsistent evidence regarding the confrontation of the
    appellant at the rectory.
After Myres father learned that the appellant had
    allegedly sexually assaulted Myre, he and Roussells father went to the rectory
    and confronted the appellant.  There, he said they saw a local lawyer whom they
    knew.  Myres fathers evidence that the appellant admitted to teaching the
    boys how to masturbate was contradicted by Roussells fathers evidence.  Both
    fathers agreed that after confronting the appellant, they were asked to leave
    the rectory.
A trial judge is entitled to accept all, part, or
    none of a witnesss evidence.  The fact that the trial judge did so in relation
    to Myres father, a Crown witness, in no way supports an inference that he
    subjected the defence witnesss evidence to greater scrutiny.
(vi)
The trial
    judge speculated that the parents in the van who attended to pick up the boys
    at the rectory in 1983 would have alerted the parents of Myre and Roussell, if
    they had been present.
The context of the comment is Kingsleys evidence
    that Myre and Roussell were among 4 to 6 boys who were at the rectory when he was
    called to investigate the complaint of sexual assault and that they were in an
    alcoholic state.  He stated that the parents of the boys were called to take
    them home, and that he believed two men arrived in a van to pick up the boys.
Neither Myres father nor Roussells father drove
    four to six boys home from the rectory after an incident at the rectory
    consistent with Kingsleys testimony.  The trial judge stated: Given the age
    of the boys and the allegation of sexual touching by a priest, one would expect
    the parents in the van would alert the parents of Myre and Roussell.  None of
    these four parents, Mr. and Mrs. Roussell or Mr. and Mrs. Myre were ever so
    alerted of any such incident.  Instead, Mrs. Myre testified that Father
    Cloutier drove her son home and came in the house for a brief visit after Myres
    weekend at the rectory.
Viewed in context, the trial judges comment was
    not speculation but a logical inference.
Dennis Landriault
(i)  The trial judge failed to address the prior
    inconsistent statement regarding the allegation of sexual touching at the
    rectory.
(ii)  He forgave Landriaults failure to tell
    police that when he visited the appellant in College that he got into bed with
    him.  The trial judge found this omission not to be important given the
    otherwise credible and strong testimony of this witness, important parts of which
    were confirmed by his fathers testimony.
(iii) He failed to question the reliability of Landriaults
    evidence, given his inability to provide a more narrow estimate of the number
    of incidents than between 5 and 50 times.
(iv)  He found no material conflict between Landriaults
    trial evidence that the incidents occurred between 5 and 50 times, and his more
    precise statement to police that they occurred 18 to 20 times
(v)
He failed to
    consider the improbability that Landriault was sexually assaulted for the first
    time with his brother in the room.
(vi)  He failed to reconcile Landriaults
    explanation with respect to the positioning of his clothing during the alleged
    assaults and the presence of semen on his bed sheets.
(vii)
He
    addressed the inconsistencies in Landriaults evidence with respect to when and
    where he made a disclosure to his mother, with speculation that there were
    likely multiple discussions, and that if there were inconsistencies they were extremely
    minor.
(viii)
He failed
    to resolve the gross discrepancy between his claim that he visited the
    appellant at a parish in Field, Ontario in 1980 or 1981, when the records
    indicate that the appellant was not at Field until 1985.
The appellants list is mostly a reiteration of
    defence counsels submission to the trial judge.  In effect, we are being asked
    to substitute our view of the evidence for that of the trial judge.
The trial judge subjected Landriaults evidence to
    a careful assessment.  That he did so is evident in how the trial judge
    addressed defence counsels assertions that, although Landriault was a
    believable witness, there were a number of things that were suspect about his
    evidence.  Three main examples support this point.  First, the trial judge
    addressed and rejected the submission that it was improbable that the appellant
    would sleep over at the Landriault home when he lived so close by.  The trial
    judge had good reason for finding that it was not improbable.  In addition to Landriaults
    evidence he had confirmation from Landriaults father that the appellant
    frequently slept over at their home.
Second, the trial judge addressed the fact that Landriault
    twice visited the appellant after Landriault went to college.  That the trial
    judge did not agree with defence counsel that these visits made Landriaults
    evidence as a whole incredible does not mean that he did not scrutinize this
    evidence  he did and he explained why he did not find the visits suspect.  Landriault
    testified that he still liked the appellant but that the sexual contact between
    them had caused him a lot of conflict in his life.  The appellant continued to
    perform religious services for the family and to attend occasionally at family
    get-togethers.  The trial judge concluded that it was not unreasonable that in
    this context Landriaults residual feelings would lead him to visit the
    appellant after the intimacy between them had ended.
Likewise, the trial judge addressed the fact that Landriault
    had not told the police that he got into bed with the appellant during one of those
    visits.  The trial judge explained that, given the whole of the evidence and Landriaults
    explanation for why he did not mention that to the police, the omission was of
    no particular or overall importance.  In any event, the trial judge acquitted
    the appellant of allegations of sexual assault in relation to the later visits.
Third, the trial judge addressed defence counsels
    concern over Landriaults not being able to state an exact number of incidents
    of abuse.  He went on to address the difference in numbers given by Landriault
    at trial and in his statement to Sergeant Delwo.  Specifically, Landriault was
    asked in chief whether he had any idea how many times the sexual abuse
    occurred.  He replied that he did not keep records of it, but he agreed with
    the Crown when she asked if it was more than five and less than 50.  In
    cross-examination, defence counsel asked Landriault if he recalled having told Sergeant
    Delwo that it happened between 18 and 20 times.  Landriault said that although
    he knows exactly what went on, he could not reliably state a precise number of
    incidents beyond saying that it happened a fair number of times.  After
    referring to this evidence, the trial judge explained that he did not find the
    variance of great concern, especially since 25 years had passed.  Again, the
    trial judge was justified in making this finding.  The fact that he did not
    find the apparent inconsistency all that troubling does not mean he did not
    scrutinize the evidence adequately  it just means he did not draw the
    inference the defence was hoping he would draw.
L.B.
(i)
The trial
    judge accepted L.B.s explanation that being a shy boy was a plausible explanation
    for this change in certainty in his inconsistent evidence regarding whether he
    initiated massages from the appellant.
(ii)
He found
    confirmation in Mrs. B.s evidence that although she did not recall seeing the
    accused go downstairs to the basement on the evenings of the card games, she
    recalled him being frequently in the home and at times went directly to the
    basement to visit L.B.  However, the trial judge ignored her qualification that
    it was after school when he went directly into the basement.
(iii)
He forgave
    the inconsistency in L.B.s evidence regarding the number of times that he
    ejaculated in his bed following the sexual assaults.
As the appellant admits, the trial judge addressed
    the inconsistency between L.B.s evidence at the preliminary inquiry and his
    trial evidence about whether he had asked the appellant for a massage or
    whether he was too shy to have asked.
He was entitled to find L.B.s explanation
    plausible.  Mrs. B. said that sometimes the appellant would come over after
    school and go down to the basement to see L.B.  It was the appellants idea to
    decorate L.B.s room and he helped L.B. do so.  The appellant was a priest and
    she trusted him.  She also agreed that if, while playing cards, the appellant
    had said on a number of occasions he was going to go downstairs and say
    goodnight to L.B., there would be no reason for her to be suspicious and no
    reason for her to even remember that happening.  The trial judge did not
    subject L.B.s mothers evidence to a different standard of scrutiny. 
    Similarly, the trial judge addressed the alleged variations in L.B.s police
    statement and his evidence at trial about how many times he thought the
    appellant brought him to ejaculation.  The trial judge did not think it was of
    concern in light of L.B.s admission that his memory was deficient on this
    detail, and that L.B. had testified the appellant would occasionally stroke his
    penis and stop just short of making him ejaculate.  The trial judge properly
    scrutinized L.B.s evidence.
Officer Kingsley
(i)  The trial judge failed to reconcile
    evidence that tended to support Kingsleys evidence that an investigation was
    conducted in 1983, such as Myres testimony that he may have been asked
    questions by police and that they were taking notes, Roussells mothers
    evidence that police may have attended upstairs with the Bishop, and the
    evidence that the police met with everyone at the dining room table prior to
    the arrival of the Bishop.
(ii)  He found a lack of confirmation in
    Kingsleys evidence, namely that if he were telling the truth, there would be
    more complainants or witnesses to the parties at the rectory.
(iii)  He held Kingsleys level of deference to
    the Catholic Church precluded his ability to investigate, without regard to his
    evidence that he had removed himself from an investigation in the past due to
    potential bias or conflict.
(iv)  He criticized Kingsleys failure to lay a
    charge, yet failed to acknowledge that Kingsley questioned the reliability of
    the allegations at the rectory at LAnnonciation.
(v)  He found that Kingsley admitted that the
    details of one investigation fade into another, yet ignored his evidence that
    this investigation was unique and memorable.
(vi)  He ignored indicia of reliability in
    Kingsleys recollection of the 1983 investigation, while unfairly highlighting
    aspects which he did not recall.
Kingsley testified that one of the reasons he may
    not have laid liquor offences against the appellant was because of his Catholic
    faith and deference to the clergy.  The trial judge was hardly in error for
    considering this admission.  Kingsley also testified he was very devout,
    deferential to the clergy, found it hard to believe such allegations against a
    priest, was uncomfortable with the allegations, had hoped he would not have to
    arrest a priest and may have carried this unease and deference into this
    investigation.  Again, it can scarcely be said that the trial judge was in
    error for considering these acknowledgements.  Despite this, the trial judge
    found Kingsley to be an honest witness but was concerned about several points
    in his memory.  For example, Kingsley admitted in cross-examination that he
    could not say for sure whether the priest at LAnnonciation rectory with whom
    he spoke was the appellant.
The appellant also gives several examples of the
    allegedly more stringent standard the trial judge applied to Kingsleys
    evidence.  The examples relate to Kingsleys evidence that Myre and Roussell
    were present at the rectory when he went to investigate or to what Kingsley
    said and did at the meeting at the Myre home.  Kingsley was testifying by
    memory beyond the one page of notes in his police notebook.  He conceded in
    cross-examination that he was assuming that the April 7, 1983 reference in the
    book referred to the dispatch to the rectory because it was the only reference
    in the book, but that it was possible that the notation referred to the meeting
    at the Myre residence, and that that could explain why he only wrote down
    Myres name.  He also conceded that the reason he remembered the two names Myre
    and Roussell could be from the meeting at the Myre residence rather than his
    visit to the rectory, and that there was no reason for him to remember those
    two names over the names of the other boys who were present at the rectory.
This is not a case like
R. v. Stewart
(1994),
    18 O.R. (3d) 509 (C.A.), where the trial judge failed to seriously consider
    substantial evidence introduced by the defence to show the improbability that
    the appellant committed the offence in the manner suggested by the
    complainant.  Having regard to the evidence as a whole, the trial judge was
    entitled to reject Kingsleys evidence that Myre was at the rectory when he
    arrived for the reasons he gave.  That rejection was not as a result of
    subjecting Kingsleys evidence to a higher level of scrutiny than that of the
    Crown witnesses.  It was as a result of consideration of Kingsleys evidence as
    a whole as well as the evidence of the six Crown witnesses.  That is also true
    of the trial judges rejection of Kingsleys evidence concerning what took
    place at the meeting at the Myre household.
Submissions that the trial judge
    took judicial notice of dubious subject matter
[106]

As in the preceding section, the appellants
    submissions are italicized while my comments rejecting them are in regular
    type.
(i)  The trial judge justified Roussells return
    to the rectory the second night after being allegedly sexually assaulted the
    first night by finding that Roussell knew he did not have to share a bed with
    the appellant, despite that not being Roussells explanation, and with the
    rhetorical question:  Do sexual partners break up or never return immediately
    when one of them exceeds the others sexual preference?
(ii)  He determined that it was reasonable that
    neither Myre nor Roussell objected to the Bishops conclusion at the 1983
    meeting because it was not probable that 14- and 15-year-olds would speak up
    and contradict the Bishop.
(iii)  He used the fact that a complaint was
    made to bolster the credibility and veracity of the allegations by taking
    judicial notice of the disincentives for a male sexual assault complainant to
    come forward.
(iv)  He dismissed the improbability that Landriault
    would sleep at the rectory on two occasions and visit the appellant in
    adulthood after allegedly having been sexually assaulted in his home as
    follows: It is perfectly plausible that a child entering into an intimate
    first relationship forms strong bonds towards the other person and becomes
    extremely attached to that person.  Feelings of teenagers are often intense. 
    The intensity of that initial sexual connection and feeling of love towards another
    by a teenager can be intense and lasting.  Many 14- and 15-year-olds are not
    fixed or formulated at that point in time as to their sexual identity.
(v)  He forgave Landriaults inconsistencies
    with respect to his age when the alleged assaults ended with the following
    rhetorical question: How many of us 30 years after our first lengthy sexual
    relationship remember our specific age when that relationship ended?  I suspect
    few absent a memorable event.

(vi)  He dismissed the defence argument that
    their drunkenness would affect the reliability of the allegations made by Myre
    and Roussell by citing the heightened importance and novelty of sexual
    contact to most 14 and 15 year olds.
(vii)  He dismissed the significance of a lack
    of confirmation of semen stains on Landriaults bed sheets as follows:  To
    which I ask, how many mothers would notice dried sperm on a sheet upon
    stripping a bed on wash day?  I expect few.  If a mother did notice and then
    identified it as dried sperm, how many mothers would confront their 15-year-old
    son rather than remain silent?  I suspect identification is very problematic
    given what dried ice cream might look like.  I cannot speculate as to the
    breakdown between confrontation versus silence by the mother.  Based on the evidence
    however, Mrs. L. was living in dramatic denial in relation to D.L. and silence
    on her part to stained bedding would be consistent with her approach.
The trial judges rejection of the defence
    assertion that it was unreasonable that Roussell would have gone back to
    LAnnonciation the second night by saying he knew he did not have to share a
    bed with the appellant was one he was entitled to make.  This was not the sole
    reason the trial judge gave.  He also took into consideration the attraction of
    cigarettes, alcohol and fun.  The trial judges rhetorical question, while
    better left unsaid, was just that, a rhetorical question that went nowhere.
The trial judges comment that neither Myre nor Roussell
    would have spoken out against the Bishop during the 1983 meeting accords with
    common sense.  Having regard to Kingsleys evidence about how he felt
    investigating this case as a Roman Catholic, the trial judge was certainly
    entitled to conclude that it would have been intimidating for two devout, young
    Catholic boys to have done so.
The trial judges comment that there are
    disincentives for a male to complain about sexual assault was an inference that
    he could have drawn from the fact that all of the complainants waited a long
    time before coming forward.  In any event, he did not make the comment to
    bolster the credibility and veracity of the complainants as the appellant
    suggests.  Rather he made the comment in the context of refuting the defence
    submission that he should have a reasonable doubt as to whether the appellant
    sexually assaulted the complainants because they were motivated by the
    potential of financial gain from a future civil law suit.  This was but one
    reason the trial judge gave for rejecting the suggestion that the complainants
    were motivated by financial gain.
Given Landriaults evidence that he loved and
    adored the appellant, there was nothing wrong with the trial judges finding
    that that bond was a factor in Landriaults decision to stay over at the
    rectory despite the abuse.  The trial judges comments concerning the intense,
    lasting feelings of love teenagers can experience and his comment that many 14-
    and 15-year-olds are not fixed in their sexual identity were superfluous and
    did not affect his reasoning.  As has been noted, the trial judge acquitted the
    appellant in relation to these later charges.
The trial judges rhetorical question in relation
    to Landriaults inconsistencies with respect to when the sexual assaults ended
    was preceded by solid reasons based on the evidence and, again, was merely a
    superfluous comment.  The trial judge held, There is not a great age
    difference when D.L. is saying on both occasions that he does not recall how
    old he was when it ended.
The trial judges
    reliance on material not in evidence and its effect on his conclusions
[107]

The appellants submissions in his factum and additional
    oral submissions are italicized.  As my comments in ordinary type indicate, the
    trial judges usage was either not material to his assessment of credibility or
    the material was in evidence elsewhere.
(i)  Roussell was cross-examined both with the
    transcript of the preliminary inquiry and a transcript of his videotaped
    statement to police.  The trial judge referenced all of this evidence and
    quoted from the preliminary inquiry and in that review, found that Roussell
    told the police that there were
six or ten
check-ups.  That information
    is not on the record.
At trial Roussell testified that the number of
    check-ups was at least 10.  The trial judge found that Roussell did not
    recall the exact number of times the check-ups had occurred.  Having regard to
    the lapse of more than twenty-five years, the trial judge found that the exact
    number of times Roussell submitted to check-ups was not material to his assessment
    of Roussells credibility.
(ii)  The trial judge stated, In his statement
    to police, R.R. stated that he remembers awaking with the defendants wet penis
    in his mouth, very, very gooey and slimy and that the defendant rubbed his
    penis on his mouth.  He stated that the defendant then attempted to penetrate R.R.s
    rectum using his finger and penis.  The description of the defendants penis
    as being very, very gooey and slimy was not in evidence.  The appellant also
    submits that there was no evidence of attempted finger and penis penetration.
Roussell did testify that the appellant tried to
    insert his penis and finger into his buttocks.  He was not cross-examined on
    this point.  In any event, the trial judge did not find beyond a reasonable
    doubt that the appellant had attempted finger and penis penetration of Roussell. 
    The substance of the evidence, that the appellant had rubbed his penis on Roussells
    mouth, had been given at trial and in the circumstances the description of what
    the appellants penis was like was not material.  The trial judge was entitled
    to find that the appellant had rubbed his penis to the mouth and the face of Roussell
    and ejaculated sperm.
(iii)
In discussing an alleged
    contradiction in the evidence of  Landriault as to the number of times he had
    been fondled, the trial judge stated that Landriault apparently told police
    that he had been fondled 18 to 20 times whereas at trial he stated that the
    defendant had fondled him more than five times and less than 50 times.  The
    trial judge then commented, The defence points to the transcript at the
    preliminary inquiry on p. 80 when the witness refers to eight times.  That
    answer was specifically in relation to the number of times the defendant rubbed
    D.L. to the point of ejaculation.  This portion of the transcript had not been
    put to Landriault.
While the pinpoint reference to this part of the
    preliminary transcript was not put to Landriault, he was cross-examined with
    excerpts from page 80.  Defence counsel specifically asked Landriault if he had
    previously said the appellant rubbed him eight times to the point of
    ejaculation.  Given that the exact passage was not used to cross-examine Landriault,
    defence counsels question of Landriault perhaps explains how the trial judges
    reference came to be made.  While the trial judges reference to the figure
    eight times is questionable, this error was in the appellants favour.
(iv)  In discussing the evidence of Landriault
    in his reasons and another alleged contradiction of Landriaults evidence, the
    trial judge quoted a slightly broader excerpt of Landriaults from the police
    interview than had been referred to by counsel.  The trial judge quoted Landriault
    as telling the police that he asked the defendant about his actions and he
    said, Im just lonely and I wont do it again, and.  This portion of the
    statement had not been referred to by counsel.
Landriault testified at trial that, Father
    Cloutier said to me that he was lonely and the profession was lonely and that he
    didnt mean any harm or hurt.
In both instances, the evidence of Landriault was
    to the effect that the appellant admitted his actions and said he had acted out
    of loneliness.  Therefore, the substance of the impugned reference was already
    in evidence.
(v)
The trial judge observed that
the
    questions and answers in L.B.s police statement were short
with respect to
    the frequency with which he ejaculated. The appellant submits that the trial
    judge went through the statement and examined the questions and answers in an
    attempt to bolster L.B.s evidence.
The preliminary inquiry transcript was put to L.B.
    on two occasions in his cross-examination.  The trial judges comment could
    have been a comment on the excerpts that were put to L.B.  In any event, the
    trial judges comment that the answers were short was innocuous.


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 judges 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 judges
    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.


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 judges 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 appellants age and his
    exemplary life since 1983.  The Crown concedes that the trial judge should
    not have treated the appellants 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 Crowns 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.
[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 appellants position of trust, respect and authority as a
    priest; the appellants 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.


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.



[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.
