Judge accepts implied consent defence
CORNER BROOK — A Corner Brook priest has been acquitted of assaulting a student even though he admitted to touching the young person at a school function in December 2018.
The incident occurred at a Bay of Islands school. The name of the school, the community and any information that would identify the student, including their age and grade level, is protected by a court-ordered publication ban.
In her decision presented via a provincial court teleconference on Thursday, Judge Kari Ann Pike said she believed Father James Robertson’s account of what happened at the school.
Reading from her 40-page decision, Pike said Robertson’s account was not only supported by a teacher at the school and, to some extent, another student present when the incident occurred, but it also rang true. He described going to a group of students because he recognized them.
“The atmosphere was light and jovial, so he engaged (them) in making jokes.”
That included teasing the alleged victim because she had teased him. It was while this was happening that Robertson grabbed the alleged victim’s knee and poked them in the rib cage.
Pike said the Crown’s evidence that Robertson came up to the group and touched the alleged victim in what could be described as grooming or a somewhat sexual behaviour, touching their upper thigh, lower back and hip area, doesn’t ring true in the circumstances.
The incident took place in an area full of people and the alleged victim’s friends were all around them.
“More importantly, the evidence doesn’t make out this scenario beyond any doubt.”
Pike said in believing Robertson’s evidence she finds that the Crown did not establish the assault described by its witnesses.
Normally, that would lead to an acquittal, but Pike said that was not necessarily the case here, as Robertson admitted to touching the alleged victim.
The Crown asserted that this, too, in the circumstances, constituted an assault. The defence asserted that in the circumstances the doctrine of implied consent should apply.
Pike reviewed case law on implied consent and noted there is a notion of implied consent that is deemed to be necessary.
“Because there is so much contact on a day-to-day basis just living in a community.”
From her analysis, Pike said, she found the application of implied consent is very fact-based.
If she had accepted the alleged assault was as the alleged victim described — the touching of their upper thigh, their lower back and over their hips, which made them and their friends uncomfortable — Pike said, then her analysis of implied consent for that kind of assault would be different.
But Pike said the court accepted the evidence of the defence. The contact admitted to was in jest, part of joking with the students.
In acquitting him of the charge, Pike found Robertson’s belief that the alleged victim consented to the touching would be reasonable in the circumstances, and it would be implied consent given the social interaction that was occurring at the time.