Judge asked to consider argument of implied consent
CORNER BROOK - A Corner Brook priest has already admitted to grabbing a student’s knee and poking them in the rib cage while at a school function, but now his lawyer is arguing the incident was one that could be considered to have taken place with the implied consent of the student.
Father James Robertson is charged with assaulting the student while at a Bay of Islands School in December 2018.
Information that could identify the student — including the school, the community, their age and their grade level — is protected by a court-ordered publication ban.
The issue of consent was raised by Judge Kari Ann Pike when submissions in the case were presented in December. The case had been set for a decision in March, but was set over to Wednesday due to the COVID-19 pandemic.
All those involved in the matter appeared via teleconference, and the defence and Crown presented submissions on the issue of implied consent as covered by Section 265(4) of the Criminal Code.
Defence lawyer Bob Simmonds said Robertson’s actions must be considered in light of the time of the year they occurred, the location, the atmosphere, the verbal exchanges and the touching that took place.
Robertson had been chatting with the student and a few others at the time, and said at trial that touching was done in a joking manner. In his statement to police and his testimony at trial, Robertson said he never thought his actions could be considered sexual or inappropriate.
“This was no more than jocularity in the time of the year, the atmosphere and the person he knew,” said Simmonds.
“I think his version of what took place should be accepted. My client certainly has raised a reasonable doubt that there is clearly evidence which reasonably considered could substantiate and would substantiate his belief that he had the implied consent. The conduct was no more than momentary, and the conduct was done in a jocular fashion over a very short period of time.”
In opposition, Crown prosecutor Brenda Duffy said it was the Crown’s position that there were no reasonable grounds for Robertson to believe the victim would consent to the contact.
She said the issue goes beyond the fact the two were at a social event.
“You have to look at the roles these people play in the community.”
Robertson is a priest who was invited to the school, and the complainant was a child and a student at the school, she said.
The complainant is not part of the defendant’s family and had met him only a few times.
“This is not a social event between the two of them,” Duffy said.
“It’s not reasonable for a priest and a student to interact in that way.
“This is not contextually appropriate if you take into consideration the roles that each of these people play in society, a child and a priest, and to which they play to each other, which was almost no relationship at all.”
Pike said she will consider the submissions of Simmonds and Duffy, and set June 25 as the new date to give her decision.