R. v. De Jaeger, 2014 NUCJ 14

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. De Jaeger, 2014 NUCJ 14 (No.4) Date: 20140422 Docket: 07-13-85; 07-13-95; 08-02-27 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Eric Jose De Jaeger ________________________________________________________________________ Before: The Honourable Mr. Justice Kilpatrick Counsel (Crown): Doug Curliss Q.C. Barry Nordin Counsel (Accused): Malcolm Kempt Location Heard: Iqaluit, Nunavut Date Heard: March 19 and 20, 2014 Matters: Similar fact application REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) 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section 486.4 of the Criminal Code , any information that could identify the complainants shall not be published in any document or broadcast or transmitted in any way.

I. THE SIMILAR FACT APPLICATION [1] This citizen is on trial for a variety of offences alleged to have been perpetrated against children, adolescent pre-teens, teenagers, andyoung adults. The complainants range between 4 and 20 years of age. All are Inuit. The allegations cover a wide variety of offencesincluding indecent assault, unlawful confinement, rape, sexual assault, assault, acts of gross indecency, threatening, buggery andbestiality. There are some eighty counts alleged, involving roughly forty complainants of both sexes, male and female.

There are threecounts 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 ofIgloolik, in what is now Nunavut. The bulk of the allegations are said to have been committed at various locations inside, or in a shedadjacent to, the Roman Catholic mission in this community. There is one allegation originating in Baker Lake. There is another allegationarising from Pelly Bay. There are four allegations that are said to have occurred at isolated hunting camps at some distance fromIgloolik.

All criminal allegations are historic in nature and cover a span of six years between 1976 and 1982. [3] Four counts were dismissed on a no evidence motion made at the conclusion of the Crown’s case. [4] The Crown now brings an application to have the Court consider as “similar facts” all of the evidence on the remaining 76 counts inrelation to the Court’s determination of liability on the outstanding charges.

This application is premised upon an argument that the factsalleged in the remaining 76 counts reveal a “situation specific pattern of behavior” that is both probative and relevant to proof of theactus reus. If admissible on this basis, the Crown argues that the Court may also consider this “similar fact” evidence in its ultimatedetermination of the credibility and or reliability of the complaints made against the Defendant. [5] The Court has heard arguments both for and against the application of similar fact evidence. II.

TIMING OF THE RULING [6] The Crown invites this Court to deliver a ruling on this similar fact application before hearing final arguments with respect to theissue of ultimate liability. It is said that the delivery of this ruling is both necessary and convenient to the parties in shaping their finalarguments on liability. [7] The presentation of the case for the prosecution or defence does not turn on this ruling being delivered before further evidence can bepresented, as was the case in the previous R v De Jaeger rulings1.

This is not a case like R v Horne, 2008 NUCJ 2 , 2008 NUCJ02, where the admission of evidence extrinsic to the trial allegations awaited a ruling allowing the similar fact evidence application. Thetrial evidence in this case is now complete. All final arguments on that evidence can now be made. The delivery of the ruling mightassist the parties in shaping or limiting their final arguments, but these final arguments can still be made and framed in the alternative ifneed be.

The Court finds that the delivery of this ruling is not “necessary” before the Crown and Defence can present their finalarguments. [8] A ruling on this type of application requires detailed and laborious consideration of the evidence given by all forty complainants;over 2000 pages of transcript. The issue raised by the Defence of collusion will first have to be addressed in relation to the complainantsindividually. The Court will then have to sift through the entirety of the evidence to determine whether there is sufficient evidence tosupport the Crown’s argument of “situation specific propensity”.

Finally, the Court will have to weigh and measure the individual piecesof evidence to determine whether its probative value outweighs its potential for prejudice. This will be a difficult and time consumingundertaking. [9] After hearing final arguments on liability, much of this process will then have to be repeated in order to address issues of credibility,reliability and weight before a determination can be made on ultimate liability. The “similar fact” considerations of “weight” and

“probative value” parallel similar considerations that will be later applied to the determination of ultimate liability (albeit with a different focus and standard of proof). [ 10 ] While it might be convenient for the parties to receive a ruling in advance of final argument, the Court would certainly be disadvantaged by having to prepare two lengthy judgments in circumstances where one detailed review of the trial evidence should suffice.

Principles of judicial economy suggest that one judgment should address all of the issues raised by the parties on both the similar fact application and arguments for and against conviction. [ 11 ] Neither Crown nor Defence are prejudiced by not having the ruling on similar fact evidence delivered in advance of final argument. The argument in relation to the application of similar fact evidence has already been made. This does not have to be repeated unless the parties choose to do so. If the parties are inconvenienced by not having the ruling at this point, they are equally inconvenienced.

Neither party secures an advantage by not having the ruling in advance of delivering their closing arguments. III. CONCLUSION [ 12 ] The Court declines the Crown’s request that the ruling on the similar fact application be delivered before receiving final argument on liability. The ruling on the Crown’s application will be given as part of this Court’s final judgment and not before. [ 13 ] Any and all final arguments on the evidence will be made, and must be completed, during the week of May 26th 2014, as scheduled. Dated at the City of Iqaluit this 22nd day of April, 2014. ____________________ Justice R.

Kilpatrick Nunavut Court of Justice

1 R v De Jaeger (No 1), 2014 NUCJ 4 , 2014 NUCJ 04; R v De Jaeger (No 2), 2014 NUCJ 7 , 2014 NUCJ 07; R v DeJaeger (No 3), 2014 NUCJ 8 , 2014 NUCJ 08. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------