R. v. Morrissey (R.J.), (1995) 80 O.A.C. 161 (CA)

• Judge: Osborne, Doherty and Laskin, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 16, 1994
• Jurisdiction: Ontario
• Citations: (1995), 80 O.A.C. 161 (CA);1995 CanLII 3498 (NS CA);1995 CanLII 3498 (ON CA);22 OR (3d) 514;38 CR (4th) 4;97 CCC (3d) 193;[1995] CarswellOnt 18;[1995] OJ No 639 (QL);26 WCB (2d) 436;80 OAC 161

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161 (CA)

MLB headnote and full text

Her Majesty The Queen (respondent) v. Robert J. Morrissey (appellant)

(C14366)

Indexed As: R. v. Morrissey (R.J.)

Ontario Court of Appeal

Osborne, Doherty and Laskin, JJ.A.

March 14, 1995.

Summary:

A former Christian Brother was charged with indecent assault, gross indecency and attempted buggery (counts 1, 2 and 6), indecent assault (count 3), indecent assault and assault (counts 4 and 5) and assault causing bodily harm (count 7) involving four inmates at a reform school. He was acquitted on counts 4 and 5. He was convicted on counts 1, 2, 3, 6 and 7 and sentenced to 18 months' imprisonment. He appealed the convictions and sentence.

The Ontario Court of Appeal dismissed the appeal against the conviction for assault causing bodily harm (count 7), but reduced sentence to time served. The court ordered a new trial with respect to counts 1, 2, 3 and 6.

Civil Rights - Topic 4909

Presumption of innocence - Circumstances not infringing presumption - A former Christian Brother was convicted of sexual offences against two inmates when he taught at a reform school 30 years earlier - He appealed alleging that the trial judge ignored the presumption of innocence - He relied on four passages from the trial judge's extensive reasons for judgment - The Ontario Court of Appeal rejected the accused's interpretation of the trial judge's statements, holding that they did not show that he presumed the accused guilty - The court added that even if the passages were ambiguous, it would prefer the interpreta­tion consistent with the trial judge's pre­sumed knowledge of the applicable law and legal principles - See paragraphs 25 to 32.

Criminal Law - Topic 1417

Assaults - Assault causing bodily harm - A former Christian Brother was charged with assault causing bodily harm against a former inmate when he taught at a reform school 30 years earlier - The inmate's eardrum was perforated when he was struck by a "Brother" - Hospital records did not identify the brother who struck the blow - Other inmates recalled the accused striking an inmate, but they could not recall the inmate who was struck - The inmate's description of the accused was inaccurate in several respects - The trial judge convicted the accused - The Ontario Court of Appeal affirmed the decision, where, on a consideration of all the rel­evant evidence, the verdict was not unrea­sonable - See paragraphs 10 to 13.

Criminal Law - Topic 4304.1

Procedure - Trial judge - Duties and functions of - Duty to consider explana­tion of accused - A former Christian Brother was charged with sexual abuse of two inmates when he taught at a reform school 30 years earlier - The testimony of the inmates was inconsistent in some respects - The accused made a blanket denial of the charges and called character and expert witnesses in his defence - The accused appealed his convictions on the basis, inter alia, that the trial judge failed to set out expressly the reasons for reject­ing the contentious parts of the accused's evidence - The Ontario Court of Appeal rejected the ground of appeal, holding that the trial judge indicated that he considered the accused's evidence - See paragraphs 36 to 38.

Criminal Law - Topic 4681

Procedure - Judgments and reasons for judgment - The Ontario Court of Appeal discussed a trial judge's reasons for judg­ment - The court stated that "it is wrong to analyze a trial judge's reasons by dis­secting them into small pieces and exam­ining each piece in isolation as if it described, or was intended to describe a legal principle applied by the trial judge ... [W]here the result turns on fact-finding and not on the application of contested legal principles, it is appropriate that the reasons should focus on telling the parties what evidence was believed and why it was believed" - See paragraphs 28 to 31.

Criminal Law - Topic 4852

Appeals - Indictable offences - Grounds of appeal - Miscarriage of justice - A former Christian Brother was convicted of four sexual offences against two inmates when he taught at a reform school 30 years earlier - The trial judge made sev­eral mistakes in finding that the complain­ants' evidence was consistent and confir­matory - The accused demonstrated that, based on these mistakes, the trial judge made crucial findings of credibility and reliability and crucial findings of fact - The Ontario Court of Appeal held that the accused had met the onus of showing that the convictions constituted a miscarriage of justice - The convictions were quashed and a new trial ordered - See paragraphs 91 to 96.

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - Question of law - A former Christian Brother was convicted of sexual offences against two inmates when he taught at a reform school 30 years earlier - The trial judge misapprehended the evidence and produced a miscarriage of justice - A new trial was ordered - The Ontario Court of Appeal opined that the trial judge's misapprehension of the evi­dence could not be classified as an error in law - There was no suggestion that he failed to consider all the evidence or mis­directed himself on the applicable law - He was simply mistaken as to what was said in evidence - The error was made in his fact-finding capacity and was not an error in law - See paragraph 97.

Criminal Law - Topic 4957

Appeals - Indictable offences - New trials - Grounds - Misapprehension of evidence - The Ontario Court of Appeal discussed the effect of a trial judge's misapprehen­sion of evidence - See paragraphs 83 to 93.

Criminal Law - Topic 4957

Appeals - Indictable offences - New trials - Grounds - Misapprehension of evidence - A former Christian Brother was con­victed of sexual offences against two inmates when he taught at a reform school 30 years earlier - The trial judge found that the two complainants were credible and reliable witnesses - He made several mistakes in finding that their evidence was consistent and confirmatory - The Ontario Court of Appeal held that the trial judge's misapprehension of the evidence was grounds for ordering a new trial pursuant to the Criminal Code, s. 686(1)(a)(iii) - See paragraphs 59 to 97.

Criminal Law - Topic 5020

Appeals - Indictable offences - Setting aside verdicts - Verdict unreasonable or unsupported by evidence - [See Criminal Law - Topic 1417 ].

Criminal Law - Topic 5035

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - General - A for­mer Christian Brother was convicted of several offences involving sexual abuse of two inmates when he taught at a reform school 30 years earlier - He appealed, alleging, inter alia, that the trial judge erred in drawing inferences that were unsupported by the evidence - The Ontario Court of Appeal affirmed that the trial judge drew unreasonable inferences and stated that unless the Crown could show that the error caused no substantial wrong, the convictions touched by the error must be quashed - See paragraphs 39 to 58.

Criminal Law - Topic 5449

Evidence and witnesses - Testimony re­specting the accused - Character of accused - General - A former Christian Brother was charged with sexually abusing two inmates when he taught at a reform school 30 years earlier - Now a parish priest, he called character witnesses who testified about his good reputation in the community - The trial judge referred to the limited evidentiary value of reputation evidence in child sex abuse cases - He also indicated that the evidence was rel­evant to his assessment of the credibility of the complainants and of the accused - The Ontario Court of Appeal held that the trial judge did not err in his treatment of the character evidence - See paragraphs 14 to 17.

Criminal Law - Topic 5883

Sentence - Assault causing bodily harm - The accused Christian Brother was con­victed of assault causing bodily harm against an inmate in a reform school when he taught there 30 years earlier - He was also convicted of four charges of sexual abuse of two other inmates - He was sentenced to one month's imprisonment for assault causing bodily harm and a total of 18 months' imprisonment - A new trial was ordered respecting the sexual abuse charges and the assault causing bodily harm charge was affirmed - The Ontario Court of Appeal reduced to time served the sentence for assault causing bodily harm - See paragraph 99.

Evidence - Topic 10

General and definitions - Question of law and question of fact distinguished - [See Criminal Law - Topic 4860 ].

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - A former Christian Brother was charged with sexually abusing two inmates when he taught at a reform school 30 years earlier - Two defence experts testified that he was not a homosexual paedophile - The Crown expert challenged both opinions and the means used to arrive at them - The trial judge accepted the Crown expert's opinion, finding that there was no clinical­ly identifiable profile of a paedophile - The accused appealed, submitting that the trial judge, in his reasons for rejecting the defence experts' opinions, misapprehended one piece of evidence - The Ontario Court of Appeal found that the trial judge did not err in his treatment of the expert evidence - See paragraphs 18 to 24.

Cases Noticed:

R. v. François (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161, refd to. [para. 13].

R. v. Profit (K.G.), [1993] 3 S.C.R. 637; 159 N.R. 395; 68 O.A.C. 37; 85 C.C.C.(3d) 232, reving. (1992), 58 O.A.C. 226; 85 C.C.C.(3d) 232 (C.A.), refd to. [para. 15].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 89 C.C.C.(3d) 402, refd to. [para. 20].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C.(3d) 193, refd to. [para. 27].

R. v. Smith (D.A.) (1989), 95 A.R. 304 (C.A.), affd. [1990] 1 S.C.R. 991; 111 N.R. 144; 109 A.R. 160, refd to. [para. 27].

R. v. R.C. (1992), 49 Q.A.C. 37; 81 C.C.C.(3d) 417 (C.A.), revd. [1993] 2 S.C.R. 226; 153 N.R. 241; 55 Q.A.C. 63; 81 C.C.C.(3d) 428, refd to. [para. 28].

Telmosse v. R. (1945), 83 C.C.C. 133 (S.C.C.), refd to. [para. 28].

R. v. MacDonald, [1977] 2 S.C.R. 665; 9 N.R. 271, refd to. [para. 31].

R. v. White (G.) (1994), 130 N.S.R.(2d) 143; 367 A.P.R. 143; 89 C.C.C.(3d) 336 (C.A.), refd to. [para. 52].

R. v. Haughton (D.) (1994), 179 N.R. 1; 79 O.A.C. 319; 93 C.C.C.(3d) 99 (S.C.C.), refd to. [para. 58].

R. v. G.B. et al. (No. 1), [1990] 2 S.C.R. 3; 111 N.R. 1; 86 Sask.R. 81; 56 C.C.C.(3d) 161; 77 C.R.(3d) 327, refd to. [para. 76].

R. v. P.N.P. (1993), 107 Nfld. & P.E.I.R. 141; 336 A.P.R. 141; 81 C.C.C.(3d) 525 (Nfld. C.A.), refd to. [para. 76].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255; 133 D.L.R.(3d) 546; 65 C.C.C.(2d) 193, refd to. [para. 83].

R. v. Schuldt, [1985] 2 S.C.R. 592; 63 N.R. 241; 38 Man.R.(2d) 257, refd to. [para. 83].

R. v. Roman and Alonso, [1989] 1 S.C.R. 230; 92 N.R. 322; 73 Nfld. & P.E.I.R. 148; 229 A.P.R. 148; 46 C.C.C.(3d) 321, refd to. [para. 83].

R. v. G.B. et al. (No. 3), [1990] 2 S.C.R. 57; 111 N.R. 62; 86 Sask.R. 142; 77 C.R.(3d) 370; 56 C.C.C.(3d) 181, refd to. [para. 83].

R. v. Morin (K.M.), [1992] 3 S.C.R. 286; 142 N.R. 141; 131 A.R. 81; 25 W.A.C. 81; 76 C.C.C.(3d) 193, refd to. [para. 83].

R. v. Fanjoy, [1985] 2 S.C.R. 233; 62 N.R. 253; 11 O.A.C. 381; 21 C.C.C.(3d) 312, refd to. [para. 91].

R. v. Stewart (1991), 43 O.A.C. 109; 62 C.C.C.(3d) 289 (C.A.), refd to. [para. 92].

R. v. A.J.R. (1994), 20 O.R.(3d) 405 (C.A.), refd to. [para. 92].

Whitehouse v. Reimer (1980), 34 A.R. 414; 116 D.L.R.(3d) 594 (C.A.), refd to. [para. 95].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 30 [para. 40].

Criminal Code, R.S.C. 1985, c. C-46, sect. 675(1) [para. 91]; sect. 675(1)(a) [para. 84]; sect. 686(1)(a) [para. 85]; sect. 686(1)(a)(i), sect. 686(1)(a)(ii), sect. 686(1)(a)(iii) [para. 87]; sect. 686(1)(b)(iii), sect. 686(1)(b)(iv) [para. 86].

Evidence Act (Can.) - see Canada Evi­dence Act.

Authors and Works Noticed:

Hooper, A., Criminal Procedure - Trial Without Jury - Obligation to Give Rea­sons for Judgment (1970), 48 Can. Bar Rev. 584, generally [para. 29].

Sopinka, J. and Gelowitz, S.M., The Con­duct of an Appeal (1993), pp. 85 to 89 [para. 83].

Taggartt, M., Should Canadian Judges be Legally Required to Give Reasoned Decisions in Civil Cases (1983), 33 U. Toronto L.J. 1, pp. 5 to 6 [para. 29].

Counsel:

Brian H. Greenspan and Sharon E. Lavine, for the appellant;

Scott Hutchison and David Lepofsky, for the respondent.

This appeal was heard on September 16, 1994, before Osborne, Doherty and Laskin, JJ.A., of the Ontario Court of Appeal. On March 14, 1995, Doherty, J.A., delivered the following judgment for the court.