R. v. DeJaeger, 2014 NUCJ 21

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. DeJaeger, 2014 NUCJ 21 Date: 20140812 Docket: 07-02-27; 07-11-6; 07-11-8; 07-11-9; 07-11-34; 07-11-36; 07-11-37; 07-11-40; 07-11-41; 07-11-44; 07-11-54; 07-11-76; 07-11-77; 07-11-106; 07-12-1; 07-12-2; 07-12-28; 14-11-83; 15-11-52; 24-12-20; 07-13-85; 07-13-95. Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Erik Jose De Jaeger ________________________________________________________________________ Before: The Honourable Mr.

Justice Kilpatrick Counsel (Crown): Doug Curliss Q.C., Barry Nordin, Scott Hughes Counsel (Accused): Malcolm Kempt Location Heard: Iqaluit, Nunavut Date Heard: November 18 - 22nd; November 25 - 29th 2013; December 2 - 4th; December 6th; December 9-12th 2013; January 20-23rd 2014; March 17-20th 2014; May 26-28th 2014 Matters: Criminal Code s. 156 x23; s. 149 x 22; s.247(2) x 2; s.155 x 12; s.331(1) (

a) x 1; s.144 x 6; s.381(1) (

a) x 1; s.157 x 2; s.245(1) x 1; s.246.1 x 1. REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication) Readers are cautioned that this judgment contains graphic descriptions of sexual activity that some may find disturbing and offensive. Restriction on Publication: By court order made under

section 486.4 of the Criminal Code , any information that could identify the complainants shall not be published in any document or broadcast or transmitted in any way. TABLE OF CONTENTS [References are to starting paragraph numbers] Overview of the allegations [1] I. MEMORY AND THE PROSECUTION OF HISTORIC ALLEGATIONS A. The effect of delay upon the prosecution and defence of criminal allegations [4] B. Delay and its impact upon the fact finding process [11] C. Cross-examination, fact-finding and the evidential value of inconsistencies [18] D. The false memory and the potential for a wrongful conviction [22] E.

The jurisprudence on recovered memories [31] II. THE GUILTY PLEAS [40] A. Review of the Crown’s evidence related to the guilty pleas Count 12 (CA) [45] Count 24 (JI) [53] Count 26 (LI) [63] Count 33 (PI) [73] Count 37 (RI) [81] Count 51 (CN) [93] Count 75 (MT) [104] Count 76 (TU) [112] B. Defendant’s Credibility Assessment [118]

C. Review of the Defendant’s evidence in relation to the guilty pleas [120] D. Conclusion - Findings of fact in relation to the guilty pleas [130] III. REVIEW OF THE CROWN’S EVIDENCE ON THE TRIAL PROPER A. The timing of a complaint [135] B.

Summary of Allegations Count 1 (JI) [140] Count 2 (CA) [149] Count 3 (DA) [153] Count 4 (MA) [159] Counts 5, 6, 8 and 9 (JA) [167] Counts 10 and 11 (MA) [178] Counts 13, 16 and 17 (LA) [185] Count 18 and 19 (LKC) [197] Court file #07-13-85 Counts 1, 2, and 3 (LKC) Counts 20, 21, and 22 (WI) [218] Count 23 (JI) [231] Count 25 (LI) [233] Counts 27, 28 and 29 (TI) [238] Count 34 (PI) [246] Count 35 (DI) [255] Count 36 (MI) [258] Count 38 (RI) [264] Counts 39 and 40 (EK) [269] Counts 41 and 42 (RK) [276] Count 43 (LK) [281] Count 44 (JM) [291] Count 45 (ZN) [298] Counts 46, 47 and 48 (MN) [307] Counts 49 and 50 (VN) [313] Counts 52 and 54 (DN) [326] Counts 53 and 54 (GN) [334]

Counts 55, 56, 57 and 58 (CP) [339] Counts 59 and 60 (LAP) [356] Counts 61, 62 and 63 (JQ) [360] Count 64 (MUO) [368] Count 65 (SQ) [373] Count 66 (JQ) [379] Counts 67 and 68 (VQ) [383] Counts 69, 70, 71 and 72 (JQ) [388] Counts 73 and 74 (LT) [395] Court File #07-13-85 Count 1 (TA) [406] C. Evidence given by the Crown’s collateral witnesses (i). The evidence of SI [409] (ii). The evidence of JU [414] (iii). The evidence of Father Robert Lechat [417] (iv). The evidence of Nicole Arnatsiaq [429] IV. REVIEW OF DEFENCE EVIDENCE ON THE TRIAL A.

Crown arguments with respect to the Defendant’s general credibility as a witness (i). The Defendant’s motivation to lie [434] (ii). The Defendant’s criminal record [437] (iii). The inference flowing from the Defendant’s flight from the law [443] B. Review of the Defendant’s testimony [449] V. THE SIMILAR FACT APPLICATION [484] A. The danger associated with the use of propensity reasoning and similar fact evidence [485] B. Collusion and tainting [491] C. Review of the Crown evidence on the issue of collusion and tainting

Counts 20, 21 and 22 (WI) [498] Counts 13, 14, 15, 16 and 17 (LA) [499] Counts 67 and 68 (VQ) [500] Counts 46, 47 and 48 (MN) and Counts 69, 70, 71 and 72 (JQ) [501] Counts 41 and 42 (RK) [502] Counts 39 and 40 (EK) [503] Counts 25 and 26 (LI) [504] Count 1 (JA) [505] Counts 10 and 11 (MA) [506] Counts 27, 28 and 29 (TI) [507] Counts 61, 62 and 63 (JQ) [508] Counts 73 and 74 (LT) [509] Counts 53 and 54 (GN) [510] Count 3 (DA) [511] Count 35 (DI) [512] Count 12 (CA) [513] Count 36 (MI) [514] Count 52 (DN) [515] Count 4 (MA) [516] Count 51 (CN) [517] Count 2 (CA) [518] Count 65 (SQ) [519] Counts 18 and 19 (LKC) [520] Court file #07-13-85 (TA) [521] Count 45 (ZN) [522] Counts 23 and 24 (JI) [523] JA (counts 5, 6, 7, 8, and 9); JM (count 44); JQ (count 66); LAP (counts 59 and 60); CP (counts 55, 56, 57, and 58); MT (count 75); PI (counts 33 and 34); RI (counts 37 and 38); TU (count 76); VN (counts 49 and 50); MUO (count 64); LK (count 43) [524] D.

Findings on the issue of collusion and tainting [525] E. Tainting and the guilty pleas [533] F. The live trial issues [536] G. The assessment of similarity [543]

H. The assessment of probative value [557] I. The assessment of prejudicial effect [564] J. The balancing of probative value and prejudicial effect [570] VI. ANALYSIS A. The burden of proof and the criminal standard [573] B.

Count by count analysis Count 1 (JA) [577] Count 2 (CA) [595] Count 3 (DA) [610] Count 4 (MA) [622] Counts 5 and 6 (JA) [638] Count 7 (JA) [657] Count 8 (JA) [658] Count 9 (JA) [664] Count 10 (MA) [671] Count 11 (MA) [680] Count 13 (LA) [685] Count 15 (LA) [700] Count 16 (LA) [703] Count 17 (LA) [709] Count 18 and 19 (LKC) [714] Court file #07-13-95 Counts 1, 2, and 3 (LKC) Counts 20, 21, and 22 (WI) [726] Count 23 (JI) [741] Count 25 (LI) [755] Count 27 (TI) [767] Count 28 (TI) [779] Count 29 (TI) [781] Count 34 (PI) [788] Count 35 (DI) [799] Count 36 (MI) [812]

Count 38 (RI) [826] Counts 39 and 40 (EK) [834] Counts 41 and 42 (RK) [841] Count 43 (LK) [853] Count 44 (JM) [861] Count 45 (ZN) [868] Counts 46, 47 and 48 (MN) [878] Counts 49 and 50 (VN) [896] Counts 52 and 54 (DN) [910] Count 53 (GN) [925] Count 54 (GN & DN) [933] Counts 55, 56, 57 and 58 (CP) [943] Counts 59 and 60 (LAP) [953] Counts 61, 62 and 63 (JQ) [967] Count 64 (MUO) [982] Count 65 (SQ) [991] Count 66 (JQ) [997] Count 68 (VQ) [1002] Counts 69, 70, 71 and 72 (JQ) [1010] Counts 73 and 74 (LT) [1026] Court File #07-13-85 [1037] Count 1 (TA) VII. CONCLUSION [1048] Appendix A. COUNT BY COUNT

SUMMARY OF FINDINGS Overview of the allegations [ 1 ] This citizen stands accused of eighty offences alleged to have been perpetrated against children, adolescent pre-teens, teenagers, and young adults. The complainants range between four and twenty years of age. All are Inuit. The allegations cover a wide variety of offences including indecent assault, unlawful confinement, rape, sexual assault, assault, acts of gross indecency, threatening, buggery and bestiality. There are some forty complainants of both sexes, male and female.

There are three counts alleging bestiality with a dog. [ 2 ] The majority of allegations are said to have been committed by this Defendant while he was a priest posted to the community of Igloolik, in what is now Nunavut. The bulk of the allegations are said to have been committed at various locations inside, or in a shed adjacent to, the Roman Catholic mission in this community. There is one allegation originating in Baker Lake. There is another allegation from Pelly Bay.

There are four allegations that are said to have occurred at isolated hunting camps at some distance from Igloolik. [ 3 ] All criminal allegations are historic in nature and cover a span of six years between 1976 and 1982.

I. HUMAN MEMORY AND THE PROSECUTION OF HISTORIC OFFENCES A. The effect of delay upon the prosecution and defence of criminal allegations [4] As months turn into years, as years turn into decades, the Court’s ability to distill historical fact from fiction becomes increasinglydifficult. In the case of R v Horne 2008 NUCJ 06, 2008 NUCJ 6 [Horne], this Court had occasion to review some of the perilsassociated with fact-finding in relation to historic events.

Much of what this Court said in Horne is repeated here for completeness. [5] Delayed reporting and the passage of time can interfere with the collection of credible evidence. Forensic science cannot assistwhere the physical evidence related to a crime or a crime scene has disappeared or ceased to exist. Witnesses may die or disappear.Witnesses who are found may choose not to cooperate. [6] The passage of time thus often results in there being no independent evidence of a crime. Yet the effectiveness of the fact-findingprocess may often depend upon there being just such evidence.

Confirmatory or corroborating evidence may well be needed to verify theaccuracy and completeness of a witness’s present memory of an historical event. This is particularly important where there is a clash ofopinion about what happened. [7] The passage of time may also affect a witness’s memory. Details once remembered may be forgotten. The greater the time, the morepronounced this phenomenon is likely to become.

This process is more rapid with children (See Cory J. in R v F (CC), (SCC), [1997] 3 SCR 1183, 120 CCC (3d) 225 at paragraph 19). [8] Memories that are recovered later in life may be influenced by a wide variety of factors related to how and why the memory wasrecovered. Human memory is frail. It is not immutable. Memories of events can shift over time as a result of subtle influences caused bya witness’s changing life experiences. Honest mistake and error can result.

Delay thus affects not only the quantity of evidence availableto the Crown, but also its quality. [9] It is against this background that the Crown must assemble its evidence. Instead of alleging a specific date or dates when the allegedoffence or offences occurred, the Crown is left to indicate only a range of time, a range which may extend over months or even years.Instead of physical evidence, the Crown is left only with the testimony of an alleged participant in the events being described. [10] The Defence inherits many of these same problems.

Exculpatory evidence will often disappear or become degraded with thepassage of time. Like the Crown’s witnesses, a Defendant’s memory will also deteriorate. After the passing of so many years, it is notrealistic to expect Defence or Crown witnesses to be able to recount details with any real accuracy. B. Delay and its impact upon the fact finding process [11] Crown and Defence may well have formidable challenges presenting their respective cases, but there is an even greater problemfaced by a Court tasked with assessing the credibility and reliability of historical allegations.

In the absence of any independent evidence,the Court must rely entirely upon cross-examination and the adversarial process to test the strength and ultimate reliability of theCrown’s evidence. [12] Effective cross-examination is an attack upon detail; it is there to expose contradictions and unreliability. This right of cross-examination is fundamental to any Defendant’s right to a fair trial. Cross-examination is also fundamental to the fact-finding processitself.

In the absence of any independent evidence, the exploration of the contextual details associated with the event through cross-examination is critical to the Court’s ability to adequately assess the credibility and reliability of a witnesses’ evidence in a trialenvironment. [13] Where there is great delay between the date of the alleged incident and the date of trial, testimony will likely be vague. It isunlikely that such testimony will have the details necessary to expose unreliability or falsehood.

This absence of detail and anycontradictions that may be uncovered in cross-examination can also be readily explained away by a witness’s fading memory. There is anatural tendency for a Judge or jury to be more forgiving to a flawed memory under these circumstances. This tendency is doublyenhanced where the events being described by a witness are not only historical, but are alleged to have been witnessed by a child.

[14] In relation to very dated events, there are very real limits as to what can be achieved by cross-examination. Repeated responses suchas “I can’t remember,” or, “It was too long ago,” can effectively shut down the testing process. The fewer the details and the larger thememory gaps, the more difficult and dangerous the fact-finding process becomes. [15] Where the passage of time prevents substantial recall of details, there remains only a bald assertion of fact.

Where such an assertionis met by an equally adamant denial, there is no safe basis to separate fact from fiction. [16] Cross-examination is best applied at a point where the witness’s memories are reasonably intact. As events become more and moreremote in time to the application of this testing process, as memories become degraded and details are forgotten, the testing process itselfbecomes less effective, and progressively more and more impaired. [17] Criminal trials are best fought with forensic weapons. A timely cross examination is one of the best and most effective means ofdiscovering the truth.

To the extent that cross-examination is impaired, the truth-finding process dependent upon this is adverselyaffected. Certainty becomes harder to achieve. C.

Cross-examination, fact-finding and the evidential value of inconsistencies [18] The Court’s fact-finding process is made further complicated by prevailing jurisprudence that directs a fact finder to assess theevidential value of inconsistencies and contradictions in a young witness’s recollection of events against their age and mental capacitywhen the event was observed or experienced by them. [19] The prevailing jurisprudence suggests that a child’s capacity to remember is not appropriately assessed using standards appropriateto a reasonable adult.

Case law in this area suggests that the omission of peripheral details is not usually a basis for rejecting thetestimony of a child witness (See R v D (GN) (1993), (ON CA), 81 CCC (3d) 65, 62 OAC 122 (Ont CA) at 78).

Forreasons related to the child’s cognitive development and memory capacity, an inability to remember time, date or location; confusionabout sequences, frequency or separation of days, may not necessarily be as damaging to a child witness as it would be to an adult (See Rv B (G), (SCC), [1990] 2 SCR 30, 56 CCC (3d) 200 (SCC). [20] The deficits common to children and adolescents apply at the point the memory is first imprinted. It is not likely that a childhoodmemory will improve with the passage of time to recover details not recorded in childhood.

While the complainants in this case were alladults at the point they testified, most of these witnesses were children or adolescents when the alleged events occurred. The memoriescarried forward from infancy into adulthood suffer from the memory deficits associated with childhood. [21] There are three possible inferences that can be drawn from the absence of contextual detail and the existence of significant gaps in awitness’s memory. These deficits can certainly be explained as the product of the age and life circumstances of a witness when thisexperience was first memorized.

Memories can be expected to degrade over time. These deficits may exist because the events themselveshave been deliberately contrived. Finally these same deficits may be present where a false memory has been inadvertently createdduring the process of memory recovery later in life. D. The false memory and the potential for a wrongful conviction [22] In the 1990’s, one Herman Kaglik of Inuvik, Northwest Territories was convicted by two successive juries of a number of sexualoffences involving a female relative.

This complainant had recovered a memory of her victimization while undergoing therapy for otherforms of trauma and addiction. This complainant was both convinced and convincing. The identity of the alleged perpetrator was not anissue in either trial. [23] Herman Kaglick continued to protest his innocence over the many years of custody that followed his sentencing. Advances in DNAscience technology ultimately made possible the examination of exhibits seized during the investigation of the second sexual assault.

[24] The DNA test results exonerated Mr. Kaglik. [25] There is much that we do not know about the human mind and its cognitive processes. Even today, cognitive science remains in itsinfancy. The workings of the mind are akin to a deep sea. Medical scientists and forensic psychiatrists have skipped rocks across itssurface, and have only achieved a limited understanding of its more visible processes. What lurks in the deepest depths of the mindremains largely unmapped and unknown. [26] In the process of attempting to recover a memory that has been “lost”, it is possible to inadvertently create a false memory.

The falsememory of an historic event for some becomes a means of rationalizing pain and dysfunctional behavior in a life and lifestyle that isotherwise disordered and chaotic. [27] As in the case of an honest but mistaken identification witness, the witness with a false memory will typically present as a veryconvinced and convincing witness. They sincerely believe that the incident being described by them is true. Their demeanor on thewitness stand may be entirely consistent with one who has been victimized.

There may well be an unconscious transference of theemotions associated with real trauma to a false memory. There may well be signs of anger and indignation, disgust and embarrassment.The emotions behind the words may ring true, but this is no guarantee that the events being described by the witness occurred asdescribed or at all. [28] Some of the Crown’s witnesses in this case say that they have had a continuous memory of the alleged abuse suffered at the handsof the Defendant.

However, a significant number of the witnesses claim to have recovered a memory of the abuse at some point later intheir lives. [29] Many of these witnesses have experienced other forms of trauma. Some have experienced multiple incidents of physical and sexualabuse at the hands of others. Many of these witnesses have discussed with others or have heard others discussing allegations of sexualabuse by the Defendant. Some complainants claim to have recovered a memory of the abuse as a result of hearing others speak of theirexperiences or through a recovery process involving repetitive flashbacks.

Some witnesses’ claim to have experienced some form ofblackout during these alleged events and are consequently unable to relate any details of what may have happened following this. [30] The very dated allegations in this case require the Court to focus on the memory retrieval process as part of its assessment ofevidence reliability. This makes the Court’s task significantly more difficult.

The Court’s ability to adequately assess the reliability of awitness’s memory is in large part dependent upon a thorough examination of how and when the memory was recovered and what mayhave influenced the memory retrieval process. E.

The jurisprudence on recovered memories [31] It has only been in the last two decades that the Courts have come to recognize the potential danger associated with the recoveredmemory and the value associated with expert evidence on the issue of memory recovery. [32] In the early cases of R v Norman (1993), (ON CA), 87 CCC (3d) 153 at 165, 26 C.R. (4th) 256, and R v BM, (ON CA), [1998] OJ No 4359 at 73, 130 CCC (3d) 353, the Ontario Court of Appeal held that the following threeaspects of the science of memory are the proper subject of expert testimony in cases involving recovered memory: a. the role that therapy can play in the retrieval of memory; b. “flashback” memories and the means of evaluating the reliability of these memories; c. the nature of memory that is repressed by reason of post-traumatic stress disorder (PTSD). [33] In the case of R v Francois, (SCC), [1994] 2 SCR 827, 31 CR (4th) 201 [Francois], the complainant at trial testifiedto having blocked, and later recovered, a memory of abuse.

This complainant’s memory was recovered after discussions with theChildren’s Aid Society and the police. There were no experts called to assist the jury in understanding the process of memory blockingand memory recovery.

[34] The Supreme Court of Canada ruled that the jury did not err in convicting the appellant. It was open to the jury to accept theexplanation provided by the complainant for her recovered memory.

With the knowledge of human nature that the jury was presumed topossess, and with the benefit of a thorough examination of the complainant about her recovered memory, the Supreme Court of Canadawas confident that jurors were collectively capable of applying their experience and common sense to determine the issue of reliability. [35] In R v Kliman (1996), (BC CA), 71 BCCA 241, 47 CR (4th) 137, one of the complainants had testified to seeinga psychologist for the purpose of bringing back memories of childhood sexual abuse. She testified to having recovered her memory ofabuse through a number of flashbacks.

This complainant had struggled to remember who had sexually abused her. The trial judge hadultimately accepted the memory of this complainant as genuine. [36] The Court of Appeal at paragraph 88 noted that there was a developing trend in Canadian jurisprudence to admit evidence ofrecovered memories with the safeguard of a strong caution regarding its reliability.

The Court of Appeal notes that the trier of fact’sassessment of reliability can be assisted by the use of expert witnesses and other scientific evidence related to the inherent reliability orlack of reliability of this type of memory. [37] In the case of R v H (RJ), 2000 BCSC 891 at paragraphs 100-118 and 153, 2000 CarswellBC 1515 [H(RJ)], the BC Supreme Court,with the assistance of an expert forensic psychologist, identified five criteria that are usually present in recovered memories related tochild sexual abuse.

It was determined that the allegations: should be of coherent events; should be described in a spontaneous fashion;should have both the quantity and quality of detail that one would expect for this particular child; should have both spatial and temporalcontext and should include descriptions of interactions between the child and the perpetrator (para.108).

Age appropriate descriptions ofthe physical sensations, thoughts and emotions being experienced at the time of the alleged events are important indicators of accuracy.The expert evidence led in this case suggested that “created” or false memories tend to be more vague, less detailed and less spontaneousthan real memories. [38] In H(RJ) a father was convicted of an historic sexual assaults upon his daughters.

The recovered memories were accepted asaccurate in this case because the memories: a. contained child-like recollection of the details concerning the discomfort experienced by the speakers; b. the details of the events being described were coherent and spontaneous; c. minor inconsistencies in the speakers evidence were reasonably explained and reflected the spontaneous nature of the recoveredmemory; d. the memories were not tainted by outside influences. [39] In this case, the Court is being asked by the Crown to simply apply “common sense” to its assessment of the reliability of thememories claimed by the complainants in this case.

For all of the reasons advanced in the preceding paragraphs, the Court’s applicationof “common sense” to the assessment of recovered memories can be problematic without a thorough review of the memory retrievalprocess. II. THE GUILTY PLEAS [40] At the outset of this trial, the Defendant entered guilty pleas to eight counts of indecent assault on males contrary to

section 156 ofthe Criminal Code (Counts 12, 24, 26, 33, 37, 51, 75 and 76). The facts related to these offences are in dispute however. By agreement,the Court heard the evidence from these eight complainants during the trial of those counts still set for trial. [41] Where the facts alleged by the Crown as the basis of a criminal charge are in dispute, the Crown is obligated to prove these factsbeyond a reasonable doubt. [42] If the Court accepts the Defendant’s evidence about what happened, the sentencing must proceed on the basis of the Defendant’sfacts and those facts only.

If the Defendant’s evidence about what happened is not believed, but the Defendant’s testimony raises areasonable doubt about the Crown’s version of events, the Court must give the Defendant the benefit of that doubt.

[ 43 ] If at the end of the day, the Court does not know who or what to believe, the law demands that the Defendant’s version of events be accepted. Once again, it is the Crown who must establish the facts upon which it relies. The Defendant does not have to prove that his version of the facts is true. [ 44 ] A criminal trial is not a credibility contest between crown and defence witnesses. The Defendant is entitled to the benefit of any reasonable doubt on an issue of credibility arising from the testimony of witnesses heard in a trial.

It is not a matter of simply choosing one witness's version of events over another. A. Review of the Crown’s evidence related to the guilty pleas Count 12 (indecent assault on CA – s.156CCC) [ 45 ] CA relates that he was between 12 and 16 when the alleged abuse occurred. CA dropped out of school after achieving a Grade 7 education. [ 46 ] This complainant says that he was in a room adjacent to the kitchen of the Roman Catholic Mission in Igloolik with two other young friends. He was assisting the others to make a metal cross out of empty bullet casings.

Some sort of blowtorch was being used to weld the empty casings together. CA says that he went to the kitchen to get some water and found the Defendant seated at the kitchen table. [ 47 ] CA says that he was suddenly grabbed by the Defendant. The Defendant sat him upon his knee. While there, the Defendant momentarily fondled his penis on top of his clothing. This caused CA to become slightly erect. CA says that he squirmed and got off the Defendant’s leg. He left the room immediately to rejoin his friends.

As CA moved back to the workroom from the kitchen, he heard the Defendant call out his name a few times. [ 48 ] CA says that at the time of the incident he thought the Defendant was trying to make him laugh by tickling him. CA did not understand this touching at the time to be a form of sexual abuse. CA says he did not think again of the incident again for many years. It was forgotten.

He had occasion to recall the event when he later heard about what the Defendant had been doing to others and learned through the media that the Defendant had returned from Belgium to Canada. [ 49 ] CA says that he first disclosed this incident to his sister LA (also a complainant) who then encouraged him to report it to Social Services. It was the Department of Social Services who contacted the police. The police investigation followed in 2011. [ 50 ] This witness indicates he never applied for nor received compensation from the Church. [ 51 ] The evidence given by this complainant is coherent and complete.

There are no obvious gaps in the sequencing of events being described by him. [ 52 ] CA speaks to a memory cue embedded in the event that he has described. CA thus links his memory of the incident to the building of a cross out of spent bullet casings. This was a memorable event for this young boy. Even today he speaks with pride of the cross built by him on this occasion. CA says that he did not keep the cross because it reminded him of what had happened to him on this occasion.

It is difficult to conceive under these circumstances how this witness could confuse abuse associated with this cross building event downstairs in the Mission with an innocuous and very brief groping upstairs in the priest’s bedroom as described by the Defendant. Count 24 (indecent assault on JI – s.156CCC) [ 53 ] A guilty plea has only been entered to the count alleging an indecent assault. Count 23, a count alleging buggery of this same complainant, remains set for trial and will be dealt with later in these reasons.

[ 54 ] JI passed away in November 2013 following a long struggle with cancer. JI first gave a formal written statement to the RCMP in 1994. The details of this earlier statement were reviewed by the Defendant in February 2012. The accuracy of this earlier statement was videotaped and verified under oath at this time and expanded upon. In view of JI’s deteriorating medical condition, JI’s evidence was preserved in a form that could be later presented to the Court. This videotaped statement is Exhibit T-11 in this proceeding.

JI has not been available for cross-examination by defence. [ 55 ] This complainant says that he was between eight and ten years of age when the sexual touching by the Defendant occurred. JI claims that there were numerous incidents. He is unable to say how many incidents in total occurred. JI suggests that the touching would happen “almost” every night and sometimes during the day. [ 56 ] It is alleged that on numerous occasions JI, together with a number of other named children, were invited to sleep over at the Roman Catholic Mission by the Defendant.

The sleep-overs would take place upstairs in the Defendant’s bedroom. The children would sleep on the floor of the bedroom with bedding provided by the Defendant. Food was provided to the children who attended. [ 57 ] JI says that at some point during the sleepover he would be taken to the Defendant’s bed by the Defendant. While there he would be invited to look at a book. The Defendant would then pull down JI’s pants to his knees, fondle JI’s genitals, and attempt to masturbate him. While doing this the Defendant would be seated on the bed in front of JI. He was usually wearing gray underwear.

On a few occasions JI claims the Defendant placed JI’s hands on the Defendant’s erect penis and tried to get JI to masturbate him. JI says that he would pull away when this happened. [ 58 ] No other witnesses were called by the Crown to confirm the evidence given by this complainant. [ 59 ] JI says that he once tried to disclose this abuse to his parents. They did not believe him, and he consequently did not raise this subject again with his family. At some undisclosed time he says that he did talk to his girlfriend about his experiences.

The named girlfriend has not been called as a witness to confirm when this disclosure took place. [ 60 ] At some point in the 90’s this complainant applied for and received compensation from the Church as a consequence of civil litigation initiated by him in relation to this claim of sexual abuse. After paying the law firm their fee, JI says he received the sum of $58,000. The details of the allegations made by JI in support of this claim are not in evidence. [ 61 ] JI says that he was also active in soliciting the involvement of others to join him in this litigation against the church.

Defence is unable to cross-examine JI to determine who JI talked to, when these discussions took place and what information about the alleged abuse was exchanged during these discussions. [ 62 ] Both JI and LI allege multiple incidents of abuse. These witnesses are not sure of the number of incidents, nor are they able to distinguish the different incidents from each other. There are no particular memory cues or contextual details provided by either complainant about these many alleged instances of sexual abuse. Both complainants are related to each other.

Both complainants had occasion to speak to each other about their experiences. Both complainants had occasion to file claims against the Church as a result of their experiences with JI taking the leading role in organizing this. There has been no evidence led about what factual allegations were made by either JI or LI in support of their claim for compensation. Both claimants would have had an incentive to inflate their allegations in order to secure a larger settlement from the Church.

Count 26 (indecent assault on LI – s.156CCC) [ 63 ] The guilty plea was recorded to only one of the two counts involving this complainant. Count 25 alleging

an act of buggery in relation to this same complainant remains set for trial. It will be dealt with later in these reasons. [ 64 ] LI dropped out of school in Grade 9. He was between nine to twelve years of age when this incident took place. He attended the Roman Catholic Mission for religion classes during the week after school with other children his age. [ 65 ] The alleged touching is said to have occurred on an unspecified number of occasions. The complainant says that he would often be

colouring with the other children in the downstairs kitchen area of the Mission. LI says that he would be picked up by the Defendant and placed on the Defendant’s knee. While there, the Defendant would put his hand inside LI’s pants and fondle LI’s penis. The duration of the fondling activity is unknown. After getting off the Defendant’s lap, LI says that the Defendant would sometimes pinch LI’s buttocks. This upset LI. [ 66 ] LI says that a number of other children were present in the room colouring when this fondling activity took place.

LI gives the names of a number of other children he was with on some of these occasions. None of these children have testified to seeing this fondling activity. LI says that the children were directed by the Defendant not to look around when they were colouring. [ 67 ] LI says that he did not realize the touching was bad until he was a teenager and learned about sex in school. LI disclosed to his older brother JI (also a complainant) who “forced” him to go to the police in 1993. [ 68 ] JI is no longer available to confirm the timing of this disclosure. [ 69 ] In 1993, LI was 25 years of age.

The 1993 statement to the police disclosed some, but not all, of the alleged abuse. LI claimed to be not strong enough to tell his full story to the RCMP in 1993. LI says that in 1993 he feared the authorities. LI also says that he had been told by the Defendant when he was a child that he would be taken away from his parents if he told anyone about what the Defendant was doing.

LI claims that this admonition still preyed on his mind in 1993 and was a factor in his not disclosing the full extent of the abuse. [ 70 ] LI’s reason for not fully disclosing the full extent of the Defendant’s abuse in 1993 to the police is suspect. Even if he feared the police, he still provided the police in 1993 with some details of the alleged abuse. It is difficult to understand why he would fear removal from his parents as a reason to keep silent. LI was then 25 years of age.

He was well into adulthood. [ 71 ] At some point LI applied for and received compensation from the Church for alleged abuse by the Defendant. The evidence does not disclose what factual allegations were advanced by LI to substantiate this claim for compensation. LI received the sum of $62,000 as a result of making this claim. It is unknown when this money was received. [ 72 ] A subsequent statement was given by LI to the police in February 2012. This was the first time that LI disclosed the full extent of the abuse he had suffered.

Count 33 (indecent assault on PI – s.156CCC) [ 73 ] There are two counts involving this complainant. A guilty plea has only been entered to one count of indecent assault. The remaining count (Count 34) remains set for trial and will be dealt with later in these reasons for judgment. [ 74 ] PI is a high school graduate. He was between eight and eleven years of age when the incidents involving the Defendant occurred. PI describes two incidents of fondling. [ 75 ] PI says that he, along with a number of other children, often stayed in the Mission after Sunday services were completed to play.

On one occasion he was invited upstairs into the Mission living quarters by the Defendant along with the others. PI says that he was treated to some dried meat described as elephant jerky by the Defendant. The provision of “elephant jerky” to a hungry child was an unusual occurrence in the life of a child living in Igloolik. PI had reason to remember this event. [ 76 ] The Defendant then asked PI to sit on his lap and PI did so.

While on the Defendant’s lap, PI says that the Defendant fondled his genitals over his clothing. [ 77 ] PI is not sure how long this touching continued, but estimates that it may have lasted at least five minutes. The Defendant was wearing civilian clothes at the time and was sitting on a chair by a table. In addition to blue jeans, the Defendant was wearing a plaid shirt and slippers trimmed with brown fur with a flower decoration near the top.

[ 78 ] There were other children in the room when this fondling activity took place. They were engaged in other activities. [ 79 ] No other witnesses have been called by the Crown to confirm or corroborate PI’s allegations. [ 80 ] PI references the first alleged abuse with a memorable event – the provision of “elephant jerky” to a hungry boy. The giving of the food/treat combined with the unusual nature of the food itself assisted this complainant in recalling the details of the first described incident.

The Defendant himself acknowledges in cross-examination that he might have on occasion given jerky or “biltong” to some of the children. He concedes that he had a relative in South Africa who sent him foodstuffs from time to time. He concedes that there might have been some discussion about “elephant” jerky. Count 37 (indecent assault on RI – s.156CCC) [ 81 ] There are two counts involving this complainant. A guilty plea has only been recorded in relation to a count of indecent assault. The remaining count (Count 38) alleging

an act of gross indecency remains for trial. [ 82 ] RI has a Grade 8 education. RI also has a significant hearing impairment and testified throughout with the assistance of an interpreter. [ 83 ] RI was between ten and thirteen years of age when the incidents with the Defendant occurred. RI was camping on the land at a spot known as Uttuksivik or Maud Bay. It was summertime. RI was with his family. At some point the Defendant joined the family and set up his own tent at some distance from the others. [ 84 ] RI speaks of three incidents of sexual touching.

Two of these touchings are the subject of Count 38 and will be discussed later in these reasons. [ 85 ] With respect to the indecent assault, RI relates that he was invited by the Defendant into the Defendant’s tent. While there the Defendant pulled down RI’s pants and while fondling his genitals attempted to masturbate him. When this touching occurred, the Defendant is described by RI as having very cold hands.

RI says that this incident ended when RI pushed the Defendant away and left the tent. [ 86 ] RI says that he was told by the Defendant that if he told anyone about what he (the Defendant) was doing no one would believe him because he was God’s helper. [ 87 ] RI says that he attempted to speak to RCMP in 1984 or 1985 about this abuse, but he was not believed. It is unknown who RI spoke to on this occasion. [ 88 ] RI later applied for and received monetary compensation from the church as a consequence of this abuse. RI received the sum of $17,600 as compensation at some undisclosed point in time.

The evidence does not reveal what allegations were made by RI in support of this claim for compensation. [ 89 ] In cross-examination RI confirms that his first formal statement about the abuse to the RCMP took place in February 2012. In this statement, RI describes an incident of sexual touching that occurred down by the water and away from the tent. RI insists that this was a different incident than the one referenced in the tent.

RI had made no mention of this other incident in his examination in chief. [ 90 ] With respect to RI’s evidence, it is inconceivable that RI’s description of a skin-to-skin masturbation in a tent on the land could be confused with a momentary groping by the Defendant at the Mission over his clothing. RI’s memory of this event includes an age appropriate child-like reference to the Defendant’s hands being very cold at the time.

[ 91 ] The Court would have to conclude that RI either deliberately fabricated the details of this incident on the land or that the incident was innocently and inadvertently created by him through the process of memory reconstruction. [ 92 ] There is nothing developed in cross-examination that would allow this Court to conclude that this witness was deliberately falsifying the events he was describing.

There is nothing in this witness’s evidence to suggest that this witness memory of this incident on the land was recovered by him later in life or that he reconstructed this memory through flashbacks over a period of time. Count 51 (indecent assault on CN – s.156CCC) [ 93 ] CN has a Grade 6 education. This complainant was between eight and twelve years of age when the incident with the Defendant occurred. [ 94 ] CN alleges that the sexual touching occurred on at least five occasions or more.

He says that it may have occurred as many as five times or more. [ 95 ] On many occasions the complainant says that he was upstairs in the Roman Catholic Mission inside the Defendant’s bedroom. CN would be playing. On some occasions he was by himself, and on others, there might have been two or more other children with him inside the bedroom.

CN is able to describe in some detail the layout of the Defendant’s bedroom for this reason. [ 96 ] CN is unable to name the other children who were present with him in the Defendant’s room. [ 97 ] CN says that on a number of occasions while he was colouring or playing by himself on the floor of the bedroom, the Defendant would seat himself on an office chair. CN says that he was then made to sit on the Defendant’s lap. On some occasions, the Defendant would remove the complainant’s belt and pull down the zipper of his pants. The Defendant would fondle CN’s penis.

On those occasions when CN was not wearing a belt, the Defendant would simply undo the snap on his pants, pull down the zipper and fondle his genitals. [ 98 ] The fondling activity always occurred when there were no other children in the room with CN. The complainant is unable to say with any certainty how long this fondling activity would last. He estimates the duration of these incidents to be as long as half an hour long. [ 99 ] CN says that he was cautioned by the Defendant to never talk to anyone about what he (the Defendant) was doing.

The incidents would often end with the Defendant saying that he would see CN next day. [ 100 ] CN says that he made no disclosure to anyone until the police became involved in 1994. [ 101 ] CN readily acknowledges that he has heard others in his community speak of their history of alleged abuse by the Defendant. [ 102 ] At some unknown time, the Defendant applied for, and received compensation from the Church for the alleged abuse by the Defendant. CN believes that he received between fifteen and twenty thousand dollars as compensation for this abuse. This compensation was received approximately 10 years ago.

The evidence does not disclose what factual allegations were advanced by CN to support this claim for compensation. [ 103 ] CN is unable to give particular details about the individual instances of abuse. There are no memory cues to differentiate one incident from another. All instances tend to blend together in one generic description of the type of abuse suffered at the hands of the Defendant.

Count 75 (indecent assault on MT – s.156CCC) [ 104 ] MT is now 34 years of age and has a grade 7 education. He was between eight and twelve years of age when this incident occurred. [ 105 ] MT says that he was in a small office on the main floor of the Mission. The Defendant was seated in a chair and reading a children’s book to a number of children who were present. MT and two named friends were standing close to the Defendant as he read from the book. At some point the Defendant reached over and put his hand on MT’s right buttock and tried to pull MT closer to where the Defendant was seated.

MT tried to pull back because he was uncomfortable. He was held fast by the Defendant and was unable to do so. The Defendant is said to have maintained his hold on MT’s bum for an estimated three minutes. [ 106 ] After three minutes the Defendant releases MT and MT and his friends left the office area to play games in a larger room with his friends. [ 107 ] MT never said anything to anyone else about this event.

He has never applied for any form of compensation from the Church. [ 108 ] The two named friends of this complainant have not been called as witnesses to confirm any part of this alleged event. [ 109 ] Defence counsel chose not to cross-examine this Complainant. [ 110 ] MT maintained that the only incident of fondling occurred in a small office on the main floor of the Mission. The accuracy of this memory was not challenged by any cross-examination. The Court has been given no cogent reason to doubt its accuracy. [ 111 ] This witness indicated he did not apply for or receive compensation from the Church.

Count 76 (indecent assault on TU – s.156CCC) [ 112 ] TU is now 50 years of age and has a Grade 9 education. TU was between fourteen and eighteen when the incident with the Defendant occurred. [ 113 ] TU says that he was in the Mission with a named younger brother and one other named individual. All three youth were in the kitchen on the main floor of the Mission. The Defendant was wearing brown corduroy pants with a striped shirt. He had sealskin kamiks on his feet. [ 114 ] The Defendant was serving the boys tea when he proposed to teach TU some self-defence moves. TU was asked to lunge at the Defendant.

TU did so twice and the Defendant blocked these moves. As TU moved against the Defendant a third time, the Defendant suddenly grabbed TU and turned the move into a dance. This involved the Defendant grabbing one of TU hands with one hand while the Defendant’s other hand rubbed TU’s bum. This touching went on for an estimated 15 seconds. [ 115 ] TU broke off this contact and returned to the table where his brother was seated. TU was upset. He told his brother what had just happened and indicated that he wanted to leave. The three youth then left the Mission. On returning home TU told his grandmother what happened.

He was told that he should never return to the Mission again without adult supervision. [ 116 ] TU’s brother was not called by the Crown to verify this disclosure by TU. TU’s grandmother died in 1983.

[ 117 ] Cross-examination of this witness was very short and only involved questions directed to the physical location of the kitchen in the Mission. No attempt was made to dislodge this Defendant from his stated version of events. There is much contextual information that is included in TU’s account of what happened. B. The Defendant’s Credibility Assessment [ 118 ] The Crown argues that a citizen who is awaiting sentence will be motivated to minimize the seriousness of the facts underlying the crimes for which they are to be sentenced. They will do so in the hope of securing a reduced sentence.

The Court has been urged to discount the Defendant’s credibility as a witness because he has a motive to lie. [ 119 ] While it is true that the presumption of innocence has been displaced by the entry of guilty pleas, this Court would fall into error if it started an assessment of the Defendant’s evidence with the assumption that he will not tell the truth about what happened. The Crown’s submission with respect to possible motive is only entitled to consideration if there is credible evidence to support such a finding.

Such a finding can only be made following an objective review of all the evidence given in the course of the Gardner hearing. The evidence of all witnesses must be given equal consideration unless or until there is a sound evidential basis to question the reliability or sincerity of a witness’s testimony. C. Review of the Defendant’s evidence in relation to the guilty pleas [ 120 ] The Defendant says that all eight indecent assaults occurred in his bedroom upstairs in the Mission. They occurred nowhere else.

In particular, the Defendant insists that no offences were ever committed in the kitchen area as claimed by CA, the office area as claimed by MT, or on the land as claimed by RI. [ 121 ] The Defendant readily admits that the children were not supposed to be upstairs in the priests living quarters in the Mission. He says that all eight boys arrived in his room uninvited and alone. Their presence was neither desired nor solicited by him. [ 122 ] The Defendant says that in every case he was busy working at his desk when the child arrived in his bedroom.

The child complainants would then start to talk and disturb the Defendant in his work. The child complainants would play with items on the Defendant’s desk. At this point the child would be standing next to the Defendant who would be seated on a chair in front of the desk. [ 123 ] The Defendant says that in all eight instances he wanted the boys to leave. He concedes that he never asked any of the children to leave. At no time does he ever remind these unwelcome visitors that they are not allowed upstairs.

Instead, as a way of shooing the boys out, the Defendant claims to suddenly touch seven of the complainants’ in the area of their crotch. He does so by gently squeezing their pants above their genitals. This activity is described as being of brief duration – less than a minute. On one occasion he admits to squeezing TU’s buttocks over his clothing. His purpose in doing so was the same – to shoo TU out of the bedroom. All eight offences were opportunistic. They were committed without any planning or forethought. [ 124 ] The Defendant says that all eight offences occurred during the day.

He denies that he ever touched any of the complainant’s on their skin. The Defendant says that there was only one sleep over during the Defendant’s tenure in Igloolik. Nothing happened on that occasion. The Defendant says that he was never on his bed with JI as alleged or at all. The Defendant claims that no other children were ever present when these eight offences were committed. [ 125 ] The Defendant insists that he did not do what he did for the purpose of sexual gratification.

He says that at the time he committed these offences, he considered the touching to be a way of showing affection like ruffling a child’s hair. He did not understand his behavior to be morally inappropriate or criminal. [ 126 ] All eight events described by the Defendant are remarkably similar. The sequence of events is the same. The type of fondling is the same with one exception (the fondling of TU’s buttocks). The duration of all eight events is approximately the same. All incidents occur at the same location – the Defendant’s bedroom.

There is very little contextual detail to distinguish one incident from another. [ 127 ] The Defendant’s claim that he only did what he did because he wanted the boys to leave his room is suspect. Common sense would

suggest that if wanted the boys to leave he would have said so on at least some of these occasions. By his own admission he did not do so at any time. This is telling. To purportedly shoo the boys out by groping their crotches or buttocks is bizarre. This happened on the Defendant’s evidence not once, not twice, but on eight different occasions. [ 128 ] There is a clear pattern of behavior evident on the Defendant’s own description of these events. The Court rejects any suggestion that such behavior was done without thinking and for an innocent purpose.

The Defendant’s suggestion that he was not motivated for reason of sexual gratification is simply not believable. [ 129 ] The Defendant’s claim that he did not realize that the act of groping a crotch to be morally inappropriate and criminal is also suspect. In cross-examination, the Defendant conceded in cross-examination that during this period of his life he never touched children in this way in the presence of other adults. He conceded that he has never and would never touch an adult in this same way.

The fact that the Defendant behaved differently in public and with adults suggests that he was well aware of prevailing social conventions with respect to the bodily integrity of others, particularly children. D. Conclusion - Findings of fact in relation to the offences involving guilty pleas [ 130 ] There is a sound basis on the evidence to question the sincerity and accuracy of the Defendant’s evidence. For all the reasons set out in paragraphs 127 to 129, the Court does not believe the Defendant’s version of events.

The Court finds that the Defendant’s evidence does not raise a reasonable doubt about what happened. [ 131 ] In particular, the Court finds that the Crown’s evidence in relation to Counts 12 (CA), 33 (PI), 37 (RI), 75 (MT) and 76 (TU) to be both credible and reliable.

In relation to these five counts the Court finds the Defendant guilty on the basis of the facts outlined by these five complainants. [ 132 ] In relation to Counts 24 (JI), 26 (LI) and 51 (CN) the Court finds that while the Crown’s evidence is sufficient to prove at least one allegation of misconduct beyond a reasonable doubt, the evidence falls short of proving to the requisite criminal standard that the multiple incidents alleged within these three counts occurred as claimed. [ 133 ] Multiple instances may have occurred, but this court cannot make findings of fact based on intuition or guesswork.

It needs evidence. The Court has an obligation to assess the reliability of a witness’s statement that an event occurred on multiple occasions. This assessment of reliability can only be done by looking at the factual underpinnings of the statement in question. In the absence of any details, the Court is not in a position to assess the reliability of the complainant’s evidence with respect to the other alleged incidents.

A bare allegation without facts and no contextual details does not lend itself to such an assessment. [ 134 ] The three complainants JI, LI and CN all received substantial monetary compensation as a result of pursuing civil claims against the Church for the Defendant’s sexual abuse. There was a potential motive to inflate the number of allegations in order to secure a larger monetary settlement. The absence of any real details to distinguish these multiple events is troubling. This raises a reasonable doubt in the Court’s mind about the frequency of the abuse alleged by these three complainants. II.

REVIEW OF THE CROWN’S EVIDENCE ON THE TRIAL PROPER A. The timing of a complaint [ 135 ] The fact that a complainant may delay reporting or fail to report an alleged sexual assault at the earliest possible opportunity does not necessarily mean that the allegations they now make are false. [ 136 ] There is no one rule to tell us how human beings will behave in the aftermath of an unexpected or frightening situation. Some may immediately report an incident to a loved one or run to the police. Others will remain silent.

They may feel overwhelmed by the events that have overtaken them, events that are beyond their control. They may consequently delay reporting for days, for weeks, or even years. Some may never make a complaint at all. They will suffer in silence.

[ 137 ] The reasons for this are many. Some are driven by fear to be silent. Some fear the court process itself and the public humiliation that this brings. Some may even feel guilty because they believe that they contributed to their own victimization. Many, particularly young children, do not know what to do, so they do nothing. [ 138 ] For this reason, this Court cannot rely upon a complainant’s failure to make a timely complaint alone as a reason to disbelieve their evidence.

The timing of the complaint is simply one of a number of factors to be considered in assessing a witness’s credibility. [ 139 ] In making this assessment of credibility, the Court must consider not only the relationship of the parties, but the embarrassing nature of the allegations, and the personality, age and life circumstances of the individual complainant. The reasons given by a complainant for the delay in reporting must also be considered. B.

Summary of Allegations Count 1 (Indecent assault of JA – s.156CCC) [ 140 ] This complainant would have been between ten and twelve years of age on the date set out in the indictment. [ 141 ] In his examination in chief this witness claimed to have experienced numerous incidents of both physical and sexual abuse at the hands of the Defendant. These incidents included common assaults, assaults with a weapon, attempted rape, and attempted murder. [ 142 ] JA claims that the Defendant explicitly directed him to recruit other children so that the priest could satisfy his sexual urges.

JA says that if he refused to do so, the Defendant would put his hand over the young complainant’s nose and mouth and choke or “suffocate” him. This choking is said to have occurred on numerous occasions. Before applying this punishment, the Defendant would usually play with JA’s penis. These acts of fondling and suffocation were allegedly perpetrated at various locations inside the Mission and on the land. [ 143 ] The “suffocation” inflicted by the Defendant would often cause JA to black out. JA also claims to have been forced on occasion to watch the Defendant suffocate other unnamed children.

No specific details are given with respect to the names of the children involved, frequency, or date. [ 144 ] JA also says that the Defendant forced him and other unnamed children to eat horsemeat that was drugged. No details are given with respect to the names of the other children involved, their ages or the frequency of this type of event. This drugged meat paralyzed the complainant and left him unable to move for an undisclosed duration. While paralyzed, he was forced to watch the Defendant sexually abuse other paralyzed children.

No details are given by this complainant as to who he saw victimized. [ 145 ] JA claimed that the Defendant would encourage him to hate and kill people who worked for the RCMP. On one occasion, it is said that the Defendant actively recruited JA to look for a gun to kill white people. [ 146 ] This complainant alleges that the Defendant tried to kill him at his parents’ outpost camp. JA says that he and his brother MA were sleeping in the Defendant’s tent at an unnamed location when the Defendant attempted to rape both the complainant and his brother.

When JA resisted, the Defendant struck this complainant on the head with a metal tent pole causing some undisclosed type of injury. [ 147 ] None of JA’s criminal allegations related to his brother MA were confirmed by MA when MA testified in this trial. [ 148 ] At some unknown time JA applied for and received compensation from the Church for the alleged abuse by the Defendant. It is unknown what facts were alleged by him to support his claim for compensation. JA says that he received the sum of $28,000.00 in settlement of this claim for compensation.

Count 2 (indecent assault of CA – s. 149CCC) [ 149 ] CA has a grade 7 education. She was between eight and twelve years of age when the alleged incident with the Defendant occurred. [ 150 ] CA alleges multiple incidents of fondling by the Defendant. The number of incidents is unknown. She indicates that the incidents all occurred at the Mission downstairs in the office. [ 151 ] CA says that she would be sitting on the Defendant’s lap either colouring or playing with the typewriter. There would usually be other children present and also engaged in activities like colouring.

CA would be told not to be shy or nervous. As she coloured or typed the Defendant would start out by fondling her breast or vagina on top of her clothing. This progressed on some occasions to fondling of her breast and genitals under her clothing. There is a fleeting reference to the Defendant licking her ear but no details of any kind are provided to link this allegation to a specific incident of abuse. [ 152 ] CA applied for and received compensation from the Church as a result of the alleged abuse by the Defendant. It is unknown when this claim was made or what facts were alleged by C in support of this claim.

CA says that she believes that she received $5,000.00 in settlement of this claim. Count 3 (Indecent assault on DA – s.156CCC) [ 153 ] This complainant was between eight and twelve years of age when the alleged incident with the Defendant occurred. DA has completed the equivalent of a grade 12 education. [ 154 ] DA says that on occasion he and a number of other children would be upstairs in the Mission playing in the upstairs kitchen and living room area. The children would be looking at Bible-related comic books or playing chess and other board games.

The Defendant would be present. [ 155 ] On one occasion when DA was seated on the Defendant’s lap, the Defendant is alleged to have fondled DA’s genitals over his clothing for a very short period of time. At some point it is alleged that the Defendant’s hand strayed under DA’s pants to momentarily touch and rub DA’s penis.

The fondling was long enough to cause DA to experience an erection. [ 156 ] This incident was very brief and ended with the Defendant putting DA down on the floor with the suggestion that he join the other children on the floor with their games. [ 157 ] DA claims to have seen his cousin DN being fondled by the Defendant (transcript page 620 lines 12 – 16). DA says that he witnessed the Defendant putting his hand inside DN’s shirt and fondling her breasts.

He says this incident lasted approximately five to ten minutes. [ 158 ] DA received compensation from the Church as a result of the alleged abuse by the Defendant. It is unknown when this claim was made or what facts were alleged by DA in support of this claim. DA says that he believes that he received approximately $30,000.00 in settlement of this claim. Count 4 (indecent assault on MA – s.156CCC) [ 159 ] MA is the brother of the complainant JA named in Count 1. This witness has completed a grade 3 education. He would have been between four and eight years during the period alleged in the indictment.

MA testified through an interpreter.

[ 160 ] MA alleges multiple events. MA says that the Defendant joined his family at a spring hunting camp in the area of the Heckless Strait known as Cape Griffith. The Defendant stayed in a small red and blue one man tent that was triangular in shape and approximately one metre in height. This tent was pitched some distance away from the family tents. [ 161 ] The first incident is alleged to have occurred near the shoreline. MA was with a young male cousin KK (also known as JK). The Defendant was sitting on a qamatiq. He is alleged to have put MA on his lap and pulled up MA’s t-shirt to rub his stomach.

The Defendant was wearing a sweater and an Inuit-made parka. MA says that the Defendant smelled bad. [ 162 ] Some days later, there is another touching. This time, the Defendant is alleged to put his hand inside MA’s pants to fondle MA’s genitals. [ 163 ] It is also alleged that the Defendant would lure the children into his tent with the promise of cookies and candies. On one occasion it is alleged that there were four or five children together with the Defendant inside the Defendant’s tent. The Defendant was sitting on a wooden box. MA says he sees the Defendant sexually abusing a girl.

He is not able to describe in any detail what he sees the Defendant doing, and he is not able to name the girl being abused. MA says that he was too frightened by the incident to remember this. [ 164 ] MA claims that while the children were inside the tent, the Defendant showed them some pornographic magazines and then systematically, one by one, abused each child in turn. MA says that he was the first child to be seated on the Defendant’s lap.

While there the Defendant put his hand inside MA’s pants and fondled his penis and attempted to put his finger in MA’s anus. [ 165 ] On a third occasion when MA was down by the shore, it is alleged that the Defendant pulls down MA’s pants to his knees and fondles MA’s buttocks. [ 166 ] There is no evidence available to the Court to determine whether this witness applied for or received compensation from the Church.

Count 5 (unlawful confinement of JA – s.247(2)CCC) Count 6 (buggery of JA – s.155CCC) Count 8 (indecent assault of JA – 149CCC) Count 9 (bestiality on a dog – s.155CCC) [ 167 ] JA never completed her education. It is unknown what grade in school was completed. JA presented as a very unsophisticated witness. She would have between eight and twelve during the period of time set out in the indictment. [ 168 ] JA says that on at least one occasion when she was downstairs in the Mission’s kitchen with other children, the Defendant put her on his knee.

The other children were engaged in colouring and other activities on the floor. JA is able to name at least four of the other children that were with her in the Mission kitchen when this alleged event occurred. [ 169 ] The Defendant is alleged to have fondled JA’s breast and vagina on top of her clothing while she was seated in the Defendant’s lap. The duration of this event is unknown. JA suggests that the Defendant used two fingers to rub her vagina. [ 170 ] JA alleges a second incident some time later. There is no indication on the evidence how much time separated this second incident from the first.

JA says that she was downstairs in the Mission with the Defendant. She was asked by the Defendant to go upstairs to the priest’s bedroom to retrieve something. She is unable to recall what it was she was asked to get. It is unknown what JA was doing in the Mission when this request was made or whether any other persons including children were present at that time.

[ 171 ] While upstairs in the Mission, JA says that the Defendant suddenly joined her in the bedroom. This bedroom was dimly lit. It had a bed with a metal frame and some kind of metal headboard and tailboard with metal slats on it. The bed had a bedspread that had a star- like pattern on it. [ 172 ] JA says that the Defendant sat on this bed and patted the mattress. He urged JA to sit beside him on the bed. When JA did so, she alleges that the Defendant started to fondle her. The touching is not described in any detail. It was some sort of rubbing against her skin.

JA then says that the Defendant put her face down on the bed and taped her right hand securely to the bedframe. [ 173 ] The Court infers from JA’s description of events that she had become uncomfortable with the touching and had tried to move away. It is at this time that the Defendant used tape to restrain JA’s right hand. After her hand was taped to the headboard, JA started to move her legs. The Defendant then taped her legs securely to the tailboard to prevent further movement. The Defendant then moves to a position on JA’s back. JA’s feels her pants being pulled down to her knees.

She experiences great pain in her rectum. [ 174 ] After the Defendant releases JA from her bonds, JA claims to notice some sort of fluid on her face and ear. At the time of this incident JA did not know what this was or how it came to be on her face. JA now assumes this fluid to be sperm. [ 175 ] At the conclusion of this incident JA says that she is told by the Defendant not to say anything to anybody about what had happened. JA says that she is then forcefully slapped on the side of her head by the Defendant and the incident ends.

JA leaves and for many years speaks to no one about this event. [ 176 ] JA also testified about an incident that she witnessed at some point involving the Defendant and one of his pet dogs. JA alleges that she and a number of other named children were lined up in a shed outside the Mission to watch the Defendant having sex with a big dog. She suggests that the Defendant wanted the children to watch what he was doing.

JA suggests that WI, JM, LA, CP, JA, JQ and VQ were all present to see what the Defendant was doing in the shed. [ 177 ] JA applied for and received compensation from the Church as a result of the alleged abuse by the Defendant. It is unknown when this claim was made or what facts were alleged by JA in support of this claim. JA says that she believes that she received $16,000.00 in settlement of this claim. Count 10 (indecent assault of MA – s.156CCC) Count 11 (indecent assault of MA – s.156CCC) [ 178 ] This witness has a grade 8 education.

MA would have been between eight and twelve years of age when these alleged incidents occurred. [ 179 ] This witness says that he and a number of other children used to attend the Mission for religion classes. Following the class, many children would remain at the Mission to play games. The children would play on the main floor of the Mission. [ 180 ] With respect to Count 10, MA says that while he was playing with others in the Mission, the Defendant approached him and asked MA to accompany him upstairs.

The Defendant said that he wanted to show MA something. [ 181 ] Once upstairs it is alleged that the Defendant sat on a couch in what appeared to be a living room area. He asked MA to sit on his lap. [ 182 ] Once MA was sitting on his lap, the Defendant started to fondle MA’s penis and anus underneath his pants. MA is not sure how long this incident lasted. It may have been as long as half an hour. [ 183 ] When the Defendant finished fondling MA, the Defendant tells MA not to tell anyone what had just happened. MA is told that if

he does tell, his father would be taken away from him. MA was then promised some juice, and he was able to rejoin the others downstairs. [ 184 ] Sometime later, MA is again visiting the Mission with TA and LA. All three boys were in the kitchen area on the main floor of the Mission. MA is washing dishes in the sink. The Defendant is also present. It is alleged that as MA is washing the dishes he is approached by the Defendant. The Defendant then touches him on his back, his shoulder and bum area while telling MA that he was doing a good job washing the dishes. This touching was on top of the clothing.

Count 13 (unlawful sexual intercourse with LA – s. 144CCC) Count 16 (bestiality with a dog – s. 155CCC) Count 17 (indecent assault of LA – s.149CCC) [ 185 ] LA has completed a grade 5 education. She was between the ages of six and ten years of age during the period of time covered by the indictment. [ 186 ] LA says that her family was impoverished. She often had to go without food. LA was raised by her biological grandmother whom she refers to as her mother. LA says that her mother would sometimes encourage LA to go to the Mission to try to get something to eat.

Food would be provided from time to time by the Defendant. This would be made available to LA upstairs in the Mission’s kitchen/living room area. LA estimates that a meal was provided by the Defendant to her on at least six occasions. [ 187 ] On one occasion after eating supper at the Mission, the Defendant took LA to a bedroom. There were no other adults or children around at this time. The Defendant asked LA to get undressed and sit on a bed and she did so. LA said she was scared because the Defendant had said “he was going to do something bad to her”.

LA says that the Defendant never did anything bad to her because she let him try to have sex with her. [ 188 ] After disrobing the Defendant played with his penis for a while. The penis got hard. The Defendant then had LA touch his penis. She was put on her back on the bed by the Defendant. The Defendant then penetrated LA’s vagina with his penis while maintaining a grip on LA’s legs. LA cried out when this happened. She says that she then blacked out for a period of time. [ 189 ] When LA recovers her memory she is bleeding heavily from her vagina. She is very scared and she is crying.

She is picked up by the Defendant. She is taken to a toilet so she could bleed into the toilet. LA stays there for some time. She then goes to sit on the couch in the living room. The Defendant puts a plastic garbage bag on the couch where LA is seated to ensure that the couch is not bloodied. There was a lot of blood according to LA. [ 190 ] This incident ends when a Mr. Kunnuk arrives upstairs. She gets dressed quickly and leaves. She recalls hearing some shouting between Kunnuk and the Defendant as she does so.

LA is not able to say what was being said or by whom. [ 191 ] Upon her return home, LA tells her mother what the Defendant had done. Her mother refuses to believe her. LA’s mother accuses says her of lying about what happened. LA says she was then beaten for lying. [ 192 ] Mr. Kunnuk has not been called as a witness. LA’s mother passed away approximately eight years ago and is no longer available to testify. [ 193 ] LA relates that on a different occasion, she and a number of other children were forced to watch the Defendant having sex with a dog in the back-porch of the Mission.

The dog is described as being very large and grey in colour. This was a breed of dog that was not common to the north. The children were lined up in the hallway to watch. The Defendant’s pants were down to his knees. He is described as standing behind the dog and “moving to it”. LA is able to name two of the three children who were present with her to witness this event. She remembers JA and JN both being there.

[ 194 ] LA says that after some time, the Defendant shifted his attention to JA. He started to do something to JA. LA does not say what she sees the Defendant doing at this point. LA becomes scared and flees the Mission. She runs home to tell her mother what was happening. Once again her mother refuses to believe her. [ 195 ] LA references a third incident involving the Defendant and her cousin DN. There are no other adults or children around. Both LA and DN are upstairs in the Mission. Both are required to undress. The Defendant is lying on the floor with his penis exposed. LA was on one of the Defendant’s legs.

DN was on the other. Both children are required to play with the Defendant’s penis. [ 196 ] LA applied for and received compensation from the Church as a result of the alleged abuse by this Defendant. It is unknown what factual allegations were made in support of this claim. LA says that she received the sum of $66,000 in settlement of this claim.

Count 18 (indecent assault of LKC – s.149CCC) Count 19 (indecent assault of LKC – s.149CCC) Court file# 07-13-95 Count 1 (unlawful sexual intercourse with LKC – s.144CCC) Count 2 (unlawful sexual intercourse with LKC – s.144CCC) Count 3 (unlawful sexual intercourse with LKC – s.144CCC) [ 197 ] This witness would have been between fourteen and eighteen during the period of time alleged in the charging documents. LKC has completed a grade 8 education. [ 198 ] LKC says that a number of youth volunteered to do clean-up at the Mission following mass and other church-related activities. LKC was one of these helpers.

LKC was encouraged to do this by her mother who was a devout Roman Catholic and avid church-goer. Clean-up was done after school and in the evening following the evening mass. [ 199 ] Following clean-up, the youth would occasionally become involved in a game of hide and seek. The Defendant would join in. LKC is intimately familiar with the layout of the Mission and is able to give a detailed description of both floors. [ 200 ] LKC gives the names of some of the other children and youth who participated with her in the games of hide and seek.

She was joined from time to time by her younger sister RK, MH, CN, GN and NK among others. [ 201 ] During one of these games the Defendant discovered LKC’s whereabouts. The other children were still in hiding. LKC alleges that the Defendant briefly fondled her genitals and breast over her clothing before running off in search of the others. LKC remembers the Defendant panting or breathing heavily as he did this.

LKC found the experience “scary” but said nothing to the Defendant at the time. [ 202 ] None of the other participants in these games of hide and seek have been called as witnesses to verify that this type of game was being played at the Mission with the Defendant. [ 203 ] From time to time, this clean-up crew of youth would be asked by the Defendant to go and clean the upstairs portion of the Mission. The size of this crew varied. Sometimes there would only be two youth in attendance. On other occasions there would be many more. LKC is able to name a number of those who participated in the upstairs clean-up.

She names LK, JI, SK, SU, MH and her younger sister RK as having joined her upstairs from time to time. [ 204 ] LKC says that on one occasion the Defendant asked her to go into the attic area of the Mission to retrieve some Christmas ornaments for communion. The other children remained downstairs. The Defendant followed LKC into the attic. He led LKC to the left side. In this area of the attic, hidden by stacked-up boxes, LKC discovered a bed made of multiple blankets and one white pillow.

[ 205 ] The Defendant had LKC lie down on this bed. She was told to lie on her side facing the boxes. The Defendant is alleged to have then pulled down her pants. LKC’s vagina was penetrated from behind by the Defendant. The act of sexual intercourse continued for some minutes or seconds. When it was over LKC was cautioned not to speak about what had happened. The Defendant is alleged to have said that on one would believe her. [ 206 ] LKC says that once she got downstairs in the Mission she experienced a wet discharge from her vagina. This caused her pants to get wet.

Shortly after getting home, LKC says that she started to bleed. [ 207 ] LKC says that she told her mother about what had happened. Her mother became very angry. Her mother told her that priests are gods. They were healers. They wouldn’t do things like that. LKC relates that she was beaten for telling a lie. LKC says that she grew to hate her mother for not believing her. [ 208 ] LKC’s mother has not been called as a witness to verify this disclosure.

It is unknown whether she is still living. [ 209 ] On yet another occasion it is alleged that LKC and her younger sister RK were both invited upstairs by the Defendant. They were both led to a couch in the living room area of the Mission. Once there, it is alleged that the Defendant invited the two girls to touch each other’s breasts and vagina on top of their clothing. They did as requested. The Defendant watched. After some time the Defendant asked the girls to touch each other under their clothing. The children complied and the Defe

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