Swales Family, Diocese Await Judge's Ruling
Justice John Kerr Will Weigh a Mountain of Evidence in Deciding the Sex Abuse Case.
By Peter Geigen-Miller
London Free Press [Canada]
December 26, 2003
After sitting through weeks of often heart-wrenching testimony, members of a London family are waiting to learn if they'll be compensated for sexual abuse by a priest in the early 1970s. John, Guy and Ed Swales, their sister Melody Legacy and parents Bob and Donna Swales are seeking damages from the Roman Catholic Diocese of London and Rev. Barry Glendinning, a retired priest.
The diocese has brought a counterclaim against John Swales, claiming he's responsible for a portion of the damages because he sexually abused his siblings after being abused by Glendinning.
The Swales have testified their family life was devastated by abuse inflicted by Glendinning, who became a trusted family friend after meeting the Swales brothers at a 1969 summer camp.
The civil suit in the Superior Court of Justice has heard stories of how Glendinning participated in masturbation, body painting and nude massage with the Swales brothers and other children between 1969 and 1974.
The activities took place on camping trips and in Glendinning's quarters at St. Peter's Seminary in London, witnesses testified.
Glendinning, who studied for the priesthood at St. Peter's and was ordained in 1964, taught liturgy at the seminary.
The case is being heard by Justice John Kerr without a jury.
The Swales have been present throughout the trial, sitting in a group on one side of the courtroom.
The trial has left Kerr with a mountain of testimony, exhibits, written and oral arguments and case law to consider before he hands down his decision.
He gave no indication on the final day of the trial when that might be.
The brothers have told how they were plunged into lost years of partying, drug and alcohol abuse and male prostitution after Glendinning's abuse was revealed in 1974.
They dropped out of school in Grade 9 and have fallen far short of their earning potential, Kerr was told.
Paul Ledroit, the London lawyer representing the Swales, argued the diocese is liable for damages on a number of fronts.
He argues the diocese was negligent in ordaining Glendinning in the first place, pointing to testimony from a witness who told how he and another student observed Glendinning and another seminarian grappling and necking outside the seminary during their student days.
The incident was reported to seminary authorities but an investigation was never carried out, even though one was required by church law, Ledroit said.
The homosexual activity should have been a red flag, warning diocese officials that Glendinning would have trouble maintaining his vow of chastity, he said.
It should have been grounds for expulsion from the seminary, added Ledroit.
"The diocese knew that Glendinning was not suitable (for the priesthood) and would . . . have a propensity to run into problems, yet ordained him in any event."
Ledroit said the diocese failed to recognize Glendinning's sexual activities despite warning signs.
One of the signs was visits by children to Glendinning's seminary quarters, said Ledroit.
Once Glendinning's abuse was revealed, the diocese failed to provide adequate assistance to the Swales family, he said.
Glendinning pleaded guilty to six counts of gross indecency and was placed on probation for three years after the abuse was revealed in 1974.
Ledroit argued the diocese is liable because the abuse occurred while Glendinning was its employee.
The London lawyer said the abuse of John, Guy and Ed Swales was "severe, prolonged and devastating."
"It interfered with their natural maturation and led to their lost years," he said.
Ledroit is seeking compensation for the income the brothers never earned because of the lost years and lost education.
The defence's case was presented by Toronto lawyers Peter Lauwers and Mark Frederick.
They said there's no doubt Glendinning assaulted the victims and is liable for his abuse.
But Lauwers argued the diocese is not legally responsible for Glendinning's activities and was not negligent in any "duty of care" it owed the Swales family.
There's no liability because Glendinning was not acting as a priest when the abuse occurred and his actions were not related to his role of seminary teacher, he argued.
"There is no evidence that the diocese knew of Glendinning's actions . . . or should have known of them.
"Glendinning and his victims kept their secret well. Not even the parents knew anything was amiss."
Lauwers argued it is not surprising Glendinning's activities went undetected because little was known of sexual abuse in the early 1970s.
This was the first reported case of abuse in the diocese, he said.
The defence disputed Ledroit's assertion Glendinning should have been ousted from the seminary during his student days.
Lauwers went on to argue if the the judge accepts the Swales's claims against the diocese, the counterclaim should prevail and John Swales should be found responsible for a portion of the losses suffered by Ed and Guy Swales.
John Swales was defended in the counterclaim by London lawyer Gordon Cudmore.
Toronto lawyer John Banfill represented Glendinning and argued damages awarded to John, Ed and Guy Swales should vary according to the amount of abuse they suffered.
Evidence showed John was abused the most, Ed the least, he said.
Banfill said Melody Legacy should not be compensated since her involvement with Glendinning was minimal and no case was made for compensating Bob and Donna Swales.
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