Putting a Price on Years of Sex Abuse
Lawyers for Victim of Former City Priest Seek $4m; Defence Lawyers Put the Figure $317,000
By Carol Mulligan
The Sudbury Star [Toronto]
June 28, 2003
Local News - TORONTO - The Roman Catholic Diocese of Sault Ste. Marie and a former priest continue to inflict pain upon a man sexually abused by the cleric by attacking the man's character "to the core of his being" during his $4-million lawsuit against them, charged the plaintiff's lawyer.
While the diocese and former Rev. Thomas O'Dell admitted to the fact of the priest's conviction in 2000 on one count of gross indecency and one count of indecent assault, they continue to "deny the facts on what the conviction was based," said Peter Downard in the Ontario Superior Court of Justice on Friday.
O'Dell is serving 30 months in Kingston Penitentiary for offences including sodomizing the victim with a crucifix, pinning him against the altar of the church and forcing him to perform oral sex.
O'Dell filed an appeal of his conviction, but it was turned down and he has been serving his sentence since late 2001.
The victim, who is now 33, was 10 to 15 years old when the sexual assaults occurred between 1981 and 1986 when O'Dell was a parish priest in Lively.
To this day, said Downard, the diocese refuses to admit to charges the plaintiff has levelled against the former priest, beyond the information upon which O'Dell's convictions were based.
The lawyer had harsh words for Bishop Jean-Louis Plouffe who testified at the trial earlier this month.
"Plouffe brought an air of unreality to his evidence, suggesting someone floating around on a cloud instead of dealing with things realistically," charged Downard.
Plouffe kept "pulling out more cases of sexual abuse" when he was testifying, said Downard.
The $4-million civil suit claims O'Dell is liable for sexual assault, battery, negligence and breach of fiduciary duty related to the plaintiff; the diocese is accused of negligence for not ensuring O'Dell conducted himself properly in carrying out his priestly duties.
Instead of feeling sympathy for the plaintiff, whom his lawyers say suffers from alcohol abuse, borderline personality disorder, depression, sexual dysfunction and confusion about his sexual orientation, the diocese has essentially said, "This plaintiff is a liar.
"(And they've) attacked his (plaintiff's) character to the core of his being when they know his fear that he will not be believed is at the core of his problems," said Downard, with the Toronto firm Fasken Martineau Dumoulin Li.
While the abuse occurred in the early 1980s, the boy did not tell anyone about it until 1992, when he first told his mother he had been raped and that he thought he was gay.
In 1987, when the victim was about 17, he said he had a flashback about the abuse and confronted O'Dell at his home about it, but left when he found a young boy in the priest's house at 10 o'clock at night.
The victim did not tell anyone about the incidents of abuse, which included the priest dressing him up as an angel and locking him in a confessional and in a closet, where he was so frightened he urinated, Downard said Thursday. Court heard during six weeks of testimony earlier, and in final submissions by the plaintiff's and the defendants' lawyers Thursday, that O'Dell had threatened the boy, telling him that no one would believe him if he exposed the truth.
But O'Dell also "terrorized him" by saying he would burn in hell and be eaten by the devil if he told anyone about the sex abuse.
Downard accused the defendants' lawyer of blaming the victim for the abuse and for the fact he is still suffering from its consequences because he did not seek treatment for it earlier.
Calling the defendant and his family the "most impressive witnesses" he has worked with in his 18 years as a lawyer, Downard said, "the aspersions cast on their credibility should be repudiated by this court."
During her final submissions, defence lawyer Josee Forest-Niesing, of Lacroix Forest law firm in Sudbury, said that a psychiatric expert called by the defence had testified the victim would have suffered many problems in life even if he hadn't been abused.
It's what's called the "crumbling skull" defence, in which it is argued that a person's already fragile mental state is exacerbated when they experience traumatic events such as abuse.
Downard accused the defence of "throwing a hardball at the complainant" by suggesting only "perfect people" have the right to seek redress for sexual abuse.
"This is sending a message to sexual assault victims that justice is only sought at a very, very high price."
But Madam Justice Katherine Swinton, who presided over what was supposed to be a two-week trial but ended up lasting six weeks, said defendants have a right "under the Constitution" to defend themselves.
In her final submission, Forest-Niesing argued against the vicarious liability that the plaintiff is seeking against the diocese. That theory is sometimes used by plaintiffs as an alternative defence, she said.
Because O'Dell has no money, she suggested the suit was being brought against the diocese, too, because it is "more solvent.
"Vicarious liability is a strict liability imposed without necessarily any wrongdoing by the employer," said Forest-Niesing.
She argued that O'Dell wasn't really an employee of the Diocese of Sault Ste. Marie. "The priesthood is a vocation, a calling," she told court. "It's not a job."
She said O'Dell's duties as a priest flowed not from his assignment to parishes by the diocese, but from "application of the code of Canon Law and from ordination."
A bishop can't hire or fire a priest, she said, and his salary is paid from offerings from his congregation, although the diocese sometimes supplements it.
"It is a difficult issue, we concede," she told court.
Forest-Niesing said while the victim considered O'Dell a friend, "there was no conferral of parental authority" upon him by the church.
"The victim visited O'Dell with the knowledge, permission and encouragement of his parents," she said.
Even the people closest to the victim - his parents - didn't realize their son was being sexually abused by the priest, despite the fact he had come home with his "shirt inside out and a pain in his crotch ... and he got defensive when questioned."
She also said the plaintiff had sought O'Dell's company on many occasions. Downard recounted in his final submission that the plaintiff was intrigued with spiritual issues as a child and that is how he and O'Dell became friends. While he was not Catholic, he regarded O'Dell as "a God-like authority.
"(The plaintiff) viewed him as a marvellous person who had the answers to his questions ... someone of great spiritual power and authority."
But Forest-Niesing argued that the secrecy of the sexual abuse made it "undetectable to the diocese and even to (the plaintiff's) own parents."
One of the arguments to support vicarious liability is that it serves as a deterrent, but that wouldn't be the case here, she said, because the abuse took place 20 years ago when little was known about sexual abuse.
"The employer should not be liable just because of his ability to pay," said Forest-Niesing. "It must be fair."
She agreed that, when it comes to damages, "an attempt must be made to provide the victim with reasonable solace for what they've lost."
The problem, she said, is quantifying that pain.
The Supreme Court of Canada has ruled that a plaintiff is not to be placed in a position "better than his original position" as a result of any judgment, she said.
The plaintiff testified that "all of his problems were caused by the sexual abuse committed by O'Dell," she said.
But her psychiatric expert said, for example, the plaintiff's "confusion over his sexual orientation" was not necessarily because of O'Dell's abuse.
"We agree that (the plaintiff's) sexual orientation, whatever it may be, is not an issue ... that damages him. But it leaves little doubt that (the plaintiff) would have inevitably, and even absent the encounters, had certain difficulties in that regard."
Other factors, including the "strict, straight-thinking" of his father may have made it difficult for him to come to grips with his sexual orientation.
The plaintiff experienced many difficulties before the abuse such as loneliness, a feeling of not belonging, acne, goading and teasing - all of which predisposed him to the "confidence problems" he is experiencing to this day.
Testimony earlier showed that the plaintiff's marks, which had not been much above average until Grade 5 when they rose significantly, nosedived after the abuse.
Among the difficulties he said resulted from the abuse are difficulties in school, failure to hold down a job and failed social relationships.
Forest-Niesing recounted how, during testimony, there had been a vast difference in the amount of compensation calculated by accountants retained by the plaintiff compared with those retained by the defendants.
The defendants' accountant came up with a figure of $317,000, because, as an underachiever, they said he wouldn't have been able to earn a large salary.
The plaintiff's accountant estimated he would have earned about $2.3 million during his working life, partly because his parents and two siblings were successful at their work and earned good salaries.
At the close of the trial early Friday afternoon, Swinton called it "a very difficult case", adding, "I will try to get this (ruling) out in a timely manner."
A second lawyer for the plaintiff, Jennifer McAteer, said she is not expecting a ruling until the end of the summer at the earliest.
The plaintiff, wearing a crisp white shirt and dress pants and looking 10 years younger than his age, attended both days of final submissions, along with his father and a female friend.
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