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).
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_____________________________________________________________________________

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.

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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 applying the second branch of the
test in R v W(D), [1991] 1 SCR 742, 46 OAC 352. The trial judge correctly
instructed himself on the principles of W(D), applicable when an accused
person testifies, at paras 42 and 43 of his reasons:

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42 If the Court accepts the Defendant's evidence about what

happened, the sentencing must proceed on the basis of the
Defendant's facts and those facts only. If the Defendant's evidence
about what happened is not believed, but the Defendant's testimony
raises a reasonable 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.

[10] Mr Dejaeger submitted that the trial judge’s use of the word “suspect” to
describe his evidence suggests that the trial judge misapplied the W(D) test.
Mr Dejaeger argued it is significant that the trial judge used the same word at
other points in his judgment to refer to the evidence of a complainant that was
not “sufficiently reliable to establish guilt”. The trial judge may have used the
same word in different contexts in a lengthy judgment, but he expressly noted
that he neither believed Mr Dejaeger’s evidence, nor did it raise a reasonable
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 evidence when he admitted similar
fact evidence, in view of his acknowledgment that “the probative value of the
similar fact evidence tendered in this case is of marginal usefulness, and is
"borderline"(para 570). The trial judge admitted a small amount of similar fact
evidence and made modest use of that evidence. He acknowledged that
“great care will be taken to ensure that this similar fact evidence is given no
more weight than it properly deserves” (para 572). We were satisfied that the
trial judge applied the correct legal test and correctly balanced probative value
and prejudice. Accordingly, this ground of appeal was also dismissed.

V. CONCLUSION

[12] For these reasons, we dismissed the appeal from conviction.

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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

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Appearances:

S. Cowan and Y. Rahamim, for the Applicant

N. E. Devlin, for the Respondent