Kingston-based priest once deemed ‘risk to children’ will have case reviewed

St. Mary’s Cathedral in downtown Kingston in late summer 2023. Photo by Troy Johnson.

The mishandling of an investigation by the Children’s Aid Society has resulted in the court setting aside the agency’s decision so that the case of a Kingston-based priest once deemed to be a “risk to children” can be reinvestigated.

It was the priest who brought the application to have his case reviewed to the Ontario Superior Court of Justice after the Children’s Aid Society (CAS) branch in question — Highland Shores CAS, based in Belleville — came to the same determination following an initial review and then refused to have the case reviewed by the Internal Complaints and Review Panel. Given that information, and the fact three Superior Court Justices signed off on having that decision set aside, Kingstonist will not be identifying the priest. Throughout this article, the priest, who was ordained through the Roman Catholic Diocese in 2013 and currently resides at St. Mary’s Cathedral in downtown Kingston, will be referred to only as “the priest” or “the applicant.”

The case

The case in question was heard in the Ontario Superior Court of Justice Divisional Court in Ottawa, by way of video conference, on Thursday, Jun. 1, 2023, with the court documents being made public on Thursday, Oct. 12, 2023. The case was heard by the Honourable M. Gregory Ellies, Senior Judge for the North East Region; the Honourable Michael R. Gibson, who also authored the court records; and the Honourable Harriet E. Sachs.

The priest was before the court seeking judicial review of a decision of the respondent, the Highland Shores Children’s Aid Society (which will be referred to henceforth as the CAS), on April 20, 2022, which reaffirmed the CAS’s reasons for a September 20, 2018 decision to “code” him as “a risk to children.” The priest asked the court to quash the decision of the CAS and submitted that the original decision was “unreasonable” and that he was denied procedural fairness.

For their part, the Highland Shores CAS asked that the application before the court be dismissed.

The original “coding” of the priest occurred in 2018; at that time he was 58.

The background

In laying out the court’s decision, Justice Gibson first provided some background on the case.

The applicant became an ordained priest of the Roman Catholic Church in 2013 and has been serving with the Archdiocese of Kingston ever since. Up until the time the priest was “coded,” he had “functioned as a parish priest assigned to a three-point charge” in three Ontario towns: Deseronto, Marysville, and Read. During that time, the priest “carried out all of the duties of his role,” the court heard, including:

  • conducting weekday and Sunday masses
  • conducting masses at Catholic schools in the district
  • hearing confessions at the churches and in the schools
  • performing weddings and funerals
  • visiting sick parishioners

The case at hand involved the allegation that while the priest took confessions from grade 7/8 students at St. Mary Catholic School in Read, Ontario, he allegedly kept the female students in confession longer than male students, sometimes up to two hours, and met “alone with female students and [spoke] to them about sexualized topics including pornography, nudity, masturbation, and premarital sex.”

The priest’s parishes. Graphic via Google Maps.

“Some of the female students he met with raised concerns to teachers that they felt uncomfortable, awkward, unsafe, disillusioned with their religion, and not wanting to go to school. Some of the girls disclosed that the Applicant hugged them or held their hands; one disclosed he touched her knee; another disclosed that he styled or groomed her hair,” court documents state of the allegations.

The court heard that after “a parent intervened” and “a teacher collected statements from the girls,” the school principal reported the allegations to Highland Shores Children’s Aid Society, pursuant to his duty under Section 125 of the Child, Youth and Family Services Act, 2017 (referred to as the “CYFSA” hereafter). At the same time, the principal reported the allegations to the priest’s employer, the Roman Catholic Archdiocese of Kingston.

Judge Gibson noted that the CYFSA “empowers the CAS to conduct investigations and make findings to whether an individual represents a risk of physical, sexual or emotional harm to children. Such determinations are referred to as ‘verifying’ the ‘coding’ of the individual in question as representing a particular risk as defined in the Ontario Child Welfare Eligibility Spectrum (‘the Spectrum’),” as set out in the Ontario Child Protection Standards, 2016.

The Highland Shores CAS investigation was carried out by its Immediate Response Worker, Ted Brown, and supervised by a more senior worker, Catherine Whitley, a Child Protection Supervisor. Court records state that Brown and Whitley met with the priest, who stated he could not disclose the nature of the discussions due to his confessional privilege. Both Brown and Whitley have degrees in the social sciences and have taken courses in forensic interviewing; neither is a lawyer, Gibson noted in the files.

Court documents go on to say that from June to late August 2018, Brown interviewed several students and “several, but not all of the female students described the discussions with the Applicant during confession as outlined above.”

On September 17, 2018, Brown met with the priest, who “stated repeatedly that the privilege attaching to the confessional forbade him from saying anything that was discussed in confession, and that, consequently, while he did not admit to the allegations, he couldn’t deny them either because to do so would require him to breach confessional privilege.”

The court heard that, immediately after that phase of the meeting, Brown announced that the decision had been made to “code” the priest as posing a risk to harm under two provisions in the Spectrum: 1.3.J, which designated him a risk of sexual harm to children, and 3.B.1, designating him a risk of emotional harm to children. The next day, September 18, 2018, Brown and Whitley conducted a “Verification Conference” and confirmed that decision, and on September 20, CAS issued a formal letter setting out the decision to “code” the priest (named) as a risk of harm to children. That letter was sent to the priest, the Archdiocese, and the school in question.

However, part of the CAS’s investigation had yet to take place. The court heard that “only on September 21, 2018, four days after the coding decision had been made,” did Brown attend St. Mary School to examine the confession room and its surroundings.

St. Mary Catholic School in Read, Ontario is an elementary school within the Algonquin and Lakeshore Catholic District School Board (ALCDSB). Photo via ALCDSB website.

The priest requested a review of the decision on December 29, 2018, reiterating “what he said were the limits of confessional privilege placed on anything alleged to have happened in the confessional.” CAS denied the request and affirmed its decision on February 1, 2019.

The priest then invoked a review of the decision by an Internal Complaints Review Panel (ICRP) of CAS, and pursued access to the agency’s file. Court documents state the COVID-19 pandemic delayed progress on that front. It was October 28, 2021, when CAS “eventually produced the record of its investigation, its decision, and the reasoning for it, with redactions concealing the names of the complainants.”

Five months later, in March 2022, the priest requested that CAS convene the Internal Complaints Review Panel. Over a month after that, the CAS responded that an Internal Complaints Review Panel process was “unlikely to yield a different result, waived further steps, and stipulated that it would not contend, in any judicial review application brought by the Applicant, that he had failed to exhaust the ICRP avenue of redress,” Gibson wrote.

“On learning of the CAS investigation, the Archdiocese removed the Applicant from his duties as a parish priest, including any work in schools, performing masses, or contact with children. Since that time, the Applicant has lived in the residence at the Cathedral in Kingston,” the court records note.

“He is paid but does not function as a parish priest. He indicates that he does not expect that the Archdiocese will permit him to resume these duties so long as the CAS decision ‘coding’ him as a risk of sexual and emotional harm to children stands.”

The application of the Judicial Review that occurred via video conference in June 2023 was commenced in May 2022.

The issues before the court

Gibson outlined that the court had two items to consider in the matter:

  1. Was the priest denied procedural fairness?
  2. Was the CAS decision reasonable?

The judge then cited a few items of case law by which the court could go about answering those questions. He then outlined the positions of the parties on both of the questions.

Issue 1 – Was the applicant denied procedural fairness?

The priest asserted that the CAS carried out its investigation in a “procedurally unfair” manner. He argued that CAS should have given him the right to an oral hearing where the complainants (in this case, the students who had spoken with CAS) could testify – and where he would have the “fair opportunity” to cross-examine them. He said the impact of the decision and the importance of credibility in making it called for this “oral hearing.” He also argued that prior case law which determined that oral hearings are not required in decisions on “coding” did not “stand in the way” of an oral hearing taking place.

The priest also contended that CAS failed to adhere to the mandatory framework set out in the Ontario Child Protection Standards, which requires the decision to verify a “coding” decision be made via a verification conference. In his case, he pointed out, the decision was made prior to any verification conference, and the “coding” decision was made without CAS having examined the scene of the alleged events.

For its part, CAS maintained it “met the duty of fairness required.” They argued the investigation standards set out by the regulation do not set out notice provisions nor hearing provisions.

“The Respondent submits that its choice of procedure is entitled to deference, and maintains that it complied with the statute and relevant policy in the investigation. Investigative techniques never include cross-examination of children, it asserts, and the investigative process is purely administrative. An oral hearing, it contends, was not required to satisfy the demands of natural justice,” Gibson wrote of the position of the CAS.

Issue 2: Was the CAS decision reasonable?

The priest argued that the CAS used illogical and/or irrational reasoning in its actions and that the investigator relied on the priest’s failure to deny the allegations as “supporting their credibility,” despite his repeated assertion of privilege and confidentiality issues. Failure to deny does not equate guilt, he said, submitting that investigators “accepted allegations without taking steps to test them.”

Further, he pointed to “unconscious collusion” between the allegations/complainants being used to “boost credibility.”

CAS submitted there was “no ability for the investigators or the CAS to find the Applicant ‘guilty’ of anything, given a criminal standard did not apply. Based on the totality of the investigation, the Society needed to determine whether it was more probable than not that the child protection concerns occurred or existed.”

“Nothing prohibits the CAS from making a verification decision because the subject of the investigation refused to respond,” Gibson noted of CAS’s position.

“Further, the CAS contends, privilege should not shield a priest from allegations, and the Applicant is mistaken in invoking penitential privilege as this privilege belongs to the person making the confession (in this case, the children), not to the priest, analogous to the context in solicitor-client privilege where the privilege belongs to the client, not to the lawyer.”

CAS maintained that there was no evidence the children interviewed were not credible, that the verification decision was justified, and that the risk of emotional and sexual harm was established. The organization underscored that it has “extensively reviewed” the verification decision and suggested that, should the Court decide to set aside the decision and order a new investigation, that investigation be done by a different CAS agency — namely the one in Kingston — due to concerns regarding impartiality.

The analysis of the issues

Issue 1: Was the manner in which the Respondent carried out its investigation of the allegations and the making of its decision to verify the ‘coding’ of the Applicant as a risk of sexual or emotional harm procedurally unfair?

After discussing the “common law duty to be fair” and procedural fairness around cases such as the one before him, Gibson pointed to a handful of case law examples setting out criteria and perimeters for investigations and decisions surrounding the safety of children.

“There can be no question that in the present case the outcome is of great importance to the Applicant as the individual affected. The stigma of being found to be a person posing a risk of sexual or emotional harm to children, and its immediate effect on his professional reputation and employment, is obviously of great import to a priest. It goes to the heart of his vocation and professional identity, his reputation in the community, and his employment prospects,” Gibson wrote.

“The Applicant submits that in the circumstances of this case, the impact of the decision points strongly to the necessity of an oral hearing and cross-examination. I do not agree… I therefore do not accept the Applicant’s primary submission regarding procedural fairness.”

However, that was not all Gibson had to say with regard to Issue 1 and procedural fairness.

“But while I do not go so far as to declare that the common law duty of fairness requires that the Applicant be afforded the right of an oral hearing and cross-examination in this case, I accept the alternative submission and agree that the CAS’s decision-making process fell short of other elements of the duty of fairness applicable in this case. The CAS failed to adhere to fundamental procedural requirements imposed by the legislative scheme.”

The judge pointed to Brown’s decision to “code” the priest being made during his appointment with the Applicant, as well as the fact Brown didn’t visit the scene of the alleged activities until after the “coding” was verified, as major downfalls of the CAS’s investigation.

“Mr. Brown essentially admitted that he should not have announced his final decision in the September 17 meeting,” Gibson noted.

“It is also troubling that the CAS did not make the [Internal Complaints Review Panel] process available. This is particularly the case since the Respondent argues that any procedural defects that led to the verification decision were ‘cured’ by what occurred afterwards, which it says amounted to an ‘appeal or review, akin to the Internal Complaint and Review Panel process.’ I do not accept this submission since there was no ICRP process. It is problematic for an administrative decision-maker to circumvent an internal review or appeal process that is supposed to be available by saying ‘It is unlikely to yield a different result’ and then telling the person with the right to the process to proceed to judicial review and that the decision-maker will not argue that the affected individual failed to exhaust his remedies  This approach short-circuits the intended safeguard in the process provided.”

Issue 2: Was the Respondent’s decision to verify the ‘coding’ of the Applicant as a risk of sexual or emotional harm unreasonable both in terms of the reasoning path taken and the result?

On this question, Gibson wasted no time or ink.

“Given the result concerning the first issue, it is unnecessary to consider the second, as the decision at issue must be set aside,” he wrote.

Conclusion

Gibson found that the original CAS decision “must be set aside, given that the investigation was flawed, and the procedure was unfair to the Applicant.”

Therefore, the application for judicial review was granted, and the decision of the CAS to verify the “code” of the priest as a risk to children was set aside.

“The CAS is ordered to cause a fresh investigation to be conducted. As indicated by counsel for the CAS in her submissions, it would be best if the conduct of the investigation was referred to another CAS. If there are difficulties with this referral, the court may be contacted in writing for further directions,” Justice Gibson concluded before turning to the question of court costs.

“The Respondent shall pay costs to the Applicant fixed at $15,000 all-inclusive.”

Kingstonist has verified that the priest in question is currently still a member of the Archdiocese of Kingston and still in residency with St. Mary’s of the Immaculate Conception.

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