R. v. Dejaeger, 2018 NUCA 06

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R. v. Dejaeger, 2018 NUCA 06 Date : 2018-11-22 Docket: 08-15-002-CAP Registry : Iqaluit Between: Erik Jose Dejaeger (a.k.a.

Eric Jose Dejaeger) Appellant -and- Her Majesty the Queen Respondent _____________________________________________________ _______ The Court: The Honourable Madam Justice Myra Bielby The Honourable Madam Justice Jo’Anne Strekaf The Honourable Madam Justice Ritu Khullar Memorandum of Judgment Appeal from the Convictions entered by the Honourable Senior Justice Kilpatrick dated August 12, 2014 ( 2014 NUCJ 21 ). _____________________________________________________________________________ MEMORANDUM OF JUDGMENT _____________________________________________________________________________ I. INTRODUCTION

[ 1 ] The appellant, Mr Dejaeger, appealed his conviction on 24 counts arising from the sexual abuse of Inuit children and adolescents and one adult woman, all of which occurred while he was a priest at the Roman Catholic mission in Igloolik between 1976 and 1982.

The offences include three counts of unlawful sexual intercourse, 10 counts of indecent assault on a female, five counts of indecent assault on a male, three counts of buggery on a male, one count of bestiality, one count of sexual assault on a female, and one count of unlawful confinement: R v Dejaeger , 2014 NUCJ 21 . [ 2 ] After reviewing the filed materials and hearing the submissions of counsel on the appeal, we dismissed the appeal from conviction with reasons to follow. These are our reasons. II. TRIAL JUDGMENT [ 3 ] Mr Dejaeger was charged with 80 counts involving 40 complainants.

He testified at the trial, denying the allegations. He pleaded guilty to eight counts of indecent assault on a male, but disputed the extent of what had occurred. His evidence was that the boys came into his room uninvited and, instead of telling them to leave, he touched them in the area of their crotch above their genitals as a way to shoo them out.

The trial judge found this evidence unconvincing (paras 127 – 130). [ 4 ] The trial judge rejected Mr Dejaeger’s evidence, finding parts of it “unbelievable” and saying that it “strain(ed) credulity” (para 482). [ 5 ] The trial judge gave extensive written reasons in his 1,005-paragraph judgment. He set out in detail the evidence given by each of the 40 complainants (paras 140-408) and by other witnesses, including parents, the priest in charge of the mission, and a nun living at the mission. Ultimately, the trial judge acquitted Mr Dejaeger on 48 counts, and convicted him on the remaining 24. III.

GROUNDS OF APPEAL [ 6 ] Mr Dejaeger argued that the trial judge erred: a. by inconsistently applying the evidentiary features of counts that gave rise to a reasonable doubt; b. in his assessment of the accused’s evidence by improperly applying the second branch of W(D) ; and c. in admitting similar fact evidence. IV. ANALYSIS [ 7 ] The first ground of appeal was essentially an unreasonable verdict complaint. Mr Dejaeger argued that the trial judge inconsistently applied features of the complainants’ evidence, and then concluded that some counts were proven beyond a reasonable double whereas others were not.

For example, he characterized a complainant’s report of a blackout on one occasion as “bizarre”, but found that another blackout had no impact on his assessment of credibility. He also treated the failure to call corroborative evidence and the seeking of compensation differently with respect to different complainants. [ 8 ] We dismissed this ground of appeal as we were satisfied that the trial judge carefully considered the evidence in the context of each of the 80 counts before him and that his reasons are clear, comprehensible and sufficient.

He recognized that a different constellation of factors presented with respect to each complaint. No single factor was determinative and he reached a unique conclusion with respect to each count. A trial judge’s findings of facts and assessment of credibility are entitled to deference on appeal and should only be interfered with where they display palpable and overriding error: R v Demedeiros , 2018 ABCA 241 at para 5 .

[9] The second ground of appeal was that the trial judge erred in his assessment of Mr Dejaeger’s evidence by improperly applyingthe second branch of the test in R v W(D), (SCC), [1991] 1 SCR 742, 46 OAC 352. The trial judge correctly instructedhimself on the principles of W(D), applicable when an accused person testifies, at paras 42 and 43 of his reasons: 42 If the Court accepts the Defendant's evidence about what happened, the sentencing must proceed on the basis of the Defendant's factsand those facts only.

If the Defendant's evidence about what happened is not believed, but the Defendant's testimony raises a reasonabledoubt 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 beaccepted. Once again, it is the Crown who must establish the facts upon which it relies.

The Defendant does not have to prove that hisversion of the facts is true. [10] Mr Dejaeger submitted that the trial judge’s use of the word “suspect” to describe his evidence suggests that the trial judgemisapplied the W(

D) test. Mr Dejaeger argued it is significant that the trial judge used the same word at other points in his judgment torefer to the evidence of a complainant that was not “sufficiently reliable to establish guilt”. The trial judge may have used the same wordin different contexts in a lengthy judgment, but he expressly noted that he neither believed Mr Dejaeger’s evidence, nor did it raise areasonable doubt (para 130).

This ground of appeal is without merit and we therefore dismissed it. [11] The third ground of appeal is that the trial judge erred in his balancing of the probative value versus prejudicial effect of evidencewhen he admitted similar fact evidence, in view of his acknowledgment that “the probative value of the similar fact evidence tendered inthis case is of marginal usefulness, and is "borderline"(para 570). The trial judge admitted a small amount of similar fact evidence andmade modest use of that evidence.

He acknowledged that “great care will be taken to ensure that this similar fact evidence is given nomore weight than it properly deserves” (para 572). We were satisfied that the trial judge applied the correct legal test and correctlybalanced probative value and prejudice. Accordingly, this ground of appeal was also dismissed. V. CONCLUSION [12] For these reasons, we dismissed the appeal from conviction. Appeal heard on September 25, 2018. Memorandum filed at Iqaluit, Nunavut this 22nd day of November, 2018. _______________________​​​ Justice M. Bielby _______________________ Justice J. Strekaf

_______________________ Justice R. Khullar Appearances: S. Cowan and Y. Rahamim, for the Applicant N. E. Devlin, for the Respondent