Nunavut Court: Criminal Record of Former Nunavut Priest May Not Be Used in Trial

By David Murphy
Nunatsiaq Online
March 18, 2014

http://www.nunatsiaqonline.ca/stories/article/65674criminal_record_of_former_priest_will_not_be_used_against_him/

Justice Robert Kilpatrick has ruled that Eric Dejaeger’s previous criminal record cannot be entered into evidence, or used against him, at his trial now under way in Iqaluit.

In a written decision released March 18, Kilpatrick said several of the Crown’s questions during Dejaeger’s cross-examination were a “trap” set in order to bring the Belgian priest’s character into question.

“An accused does not put his or her character into issue in circumstances where he or she is tricked into doing so by inappropriate questions raised by the Crown in cross-examination,” Kilpatrick said in the statement.

Kilpatrick released his decision the morning after both Crown and defence lawyers wrestled in the Nunavut Court of Justice over whether to admit his previous criminal record as evidence March 17.

Because such evidence can be highly prejudicial to an accused person, Crown lawyers can’t introduce it unless they persuade a judge that the value of such evidence in establishing facts outweighs its prejudicial effects.

In 1990, Dejaeger was convicted on nine counts of sexual abuse that occurred when he was a priest in Baker Lake. He served five years in jail.

Crown prosecutor Doug Curliss argued March 17 that Dejaeger opened up a debate about his character by saying under oath that he’s not a violent person and would never threaten children.

As a result, Curliss argued, his previous criminal record should be allowed into evidence.

Defence lawyer Malcolm Kempt opposed this and said the Crown’s line of questioning was leading.

Dejaeger pleaded guilty to eight charges of touching boys at the start of the trial last November. He said he touched them as a means of “shooing” them away from his work.

Curliss asked Dejaeger on the witness stand, “Why didn’t you punch him in the face?”

Dejaeger said he wouldn’t do that because that would be a form of violence, and he’s not a violent person.

After considering the evidence for a day, Kilpatrick sided with Kempt.

“The question was a trap,” Kilpatrick said.

“The defendant was induced by this line of questioning to give evidence of good character,” Kilpatrick said.

Kilpatrick also gave Dejaeger a little slack because he testified in his second language, English. Flemish is his first language.

Ultimately the judge said allowing Dejaeger’s previous criminal record could “potentially undermine trial fairness,” and he denied the Crown’s application.

“The defendant’s own criminal record contradicts any suggestion that violence is out of character for this citizen,” Kilpatrick said.

Now, Kilpatrick has another decision to make.

The Crown submitted a subsequent application at the Nunavut Court of Justice March 18.

Curliss is calling foul on an instance when the defence suggested one of the witnesses fabricated a story in 1987 about Dejaeger raping her in Pelly Bay — now called Kugaaruk.

“My friend says she’s a liar — she’s a liar and she made things up,” Curliss said.

The witness’s name may not be broadcast or published.

Curliss wants to call rebuttal evidence in reference to that witness’s testimony.

Rebuttal evidence can be brought in a case where an opposing party deems testimony given by a witness to be untrue.

The Crown wants to prove the witness’s claim by introducing further police evidence to show that her statements are legitimate and consistent.

Curliss said the woman told her husband about her encounter with Dejaeger about 10 or 12 years ago in the early 2000s, but she didn’t go to police until around 2010 after she heard media reports about Dejaeger’s charges.

Police interviewed her husband, and Curliss said he gives an “accurate summary” of her story in a taped interview.

The only discrepancy in the husband’s story is that he said his wife was raped when she was 20 years old — not 34, which is the age the witness gave at trial.

Curliss said that would make more sense, since Dejaeger claimed he never went to Pelly Bay in 1987 — but he did in 1973.

Kempt argued that the witness made the whole story up 12 years ago before telling her husband.

He said that she fabricated the story after speaking with relatives who said they were sexually abused by Dejaeger. One of those relatives has since died by suicide, Kempt added.

Kilpatrick said he will issue a decision on the application March 19.