Wednesday, February 4, 2015

Reasons for sentence in DeJaeger (Part only)

Erik DeJaeger was posted to Igloolik to do God’s work. He was trained as an Oblate missionary. He was an ordained priest of the Roman Catholic Church. The parishioners of Igloolik expected their priest to be a doer of good deeds. The reality would be very different.

[2] Between 1978 and 1982, Mr. DeJaeger methodically victimized the vulnerable children and youth of his remote arctic parish. He is now to be sentenced for 32 sex related offences. There are 23 individual victims involved, ten females and thirteen males. All the victims are Inuit. The majority of the victims were between 9 and 13 years of age when these offences occurred.

[3] This priest was expected to devote his life to God. He was in Igloolik to serve others. He was to teach by example. The conventions of the Roman Catholic Church hold the priest to be a moral exemplar of the Church’s teachings. There was an expectation that this priest would emulate the moral standards that were being taught from the pulpit.

[4] Mr. DeJaeger’s many victims came to see this priest in an entirely different light. Instead of moral probity, there was licentiousness and depravity. Instead of honesty and personal integrity, there was duplicity and hypocrisy. Instead of kindness, there was selfish self-gratification and disrespect.

[5] Mr. DeJaeger knew that his parishioner’s religious beliefs would isolate those who disclosed their abuse. Most of this priest’s young victims feared that they would not be believed by their parents or their community if they challenged the sanctity of a "man of God". Where allegations of sexual misconduct contradict religious standards and expectations, disbelief is often the result.

[6] A number of the victims had the courage to speak of their abuse to their parents. They were beaten for telling "lies" about the priest.


[7] By debasing the sanctity of the priest’s holy office, Mr. DeJaeger has brought incalculable harm to the standing of the Roman Catholic Church and of the Oblate Order of which he is a part. He has breached a trust that is implicit in the priest’s relationship with his parishioners. He has tarnished the well-earned reputation of those priests who have tirelessly served the Church with devotion and self-sacrifice in the remote regions of Canada.

[8] Mr. DeJaeger preyed upon the flock that he was tasked to nurture and protect. He was a wolf masquerading as a good shepherd. His life as a priest was a lie. The reputation and authority of this priest’s holy office was used to facilitate his predatory activity.

[9] Mr. DeJaeger’s criminal misconduct was a profound betrayal of the many parents in Igloolik who entrusted their children to this priest’s pastoral care. This was a betrayal of the principles of the Oblates. This was a betrayal of the Roman Catholic Church and all it stood for as an institution.


A. The application of the totality principle and assignment of concurrent and consecutive terms of imprisonment
[299] Criminal offences involving different victims committed at different locations and on different dates should ordinarily attract consecutive terms of imprisonment. Separate criminal acts should receive separate sanctions. Proportionality must be maintained to reflect the gravity and moral culpability associated with individual criminal acts.

[300] The jurisprudence identifies two exceptions to the general rule outlined above.

[301] Where multiple offences arise out of the same transaction and contain similar elements, a concurrent sentence may be imposed. When this is done, care must be taken to ensure that the overall end result is proportional to the inherent seriousness of all offences when considered together. Proportionality is maintained by inflating the penalty for the most serious offence to reflect the underlying concurrent sentences that form part of this same transaction.

[302] The second exception relates to a sentencing court’s application of the totality principle.

[303] The "totality principle" is nothing more than a restatement of a fundamental sentencing principle that requires proportionality in sentencing. The overall sentencing "package" for multiple offences must be proportional to the gravity of the offences and the moral blameworthiness of the offender when considered together. The totality principle thus requires an assessment of whether the combined effect of imposing consecutive sentences for multiple offences will exceed the overall moral culpability of the offender for committing these offences in these particular circumstances.

[304] Where the combined effect of consecutive sentences becomes disproportionate to the overall gravity of the offences and the offender’s moral blameworthiness, a sentencing court may use concurrent sentences of imprisonment to ensure that proportionality is maintained. This can be done even in circumstances where consecutive sentences would otherwise have been employed.


[305] With one exception, all of the counts for which Mr. DeJaeger has pled guilty or been found guilty involve separate and distinct offences on different victims or are offences involving the same victim committed on different days. Consecutive sentences should ordinarily be applied in these circumstances.

[306] The exception referenced above relates to Counts 5 and 6, where restraints were applied to a victim to facilitate the commission of an indecent assault. The elements associated with the offence of unlawful confinement are very distinct from those associated with the indecent assault. In this circumstance, a consecutive sentence is still entirely appropriate, notwithstanding that this offence is inextricably linked to the sexual offence.

[307] If consecutive sentences are imposed for all of the offences before the court, the overall length of the resulting period of imprisonment would result in a combined sentence that is in excess of 75 years of imprisonment. Having given anxious consideration to this offender’s present age and circumstances, his overall moral culpability, and the gravity of the various offences committed by him, the Court finds that it is necessary to apply the totality principle in order to maintain proportionality in sentencing in this case.
[308] The Defense argues, based on other sentencing precedents, that an overall sentence of 12 years of imprisonment would be sufficient to achieve proportionality. In making this submission, the Defense references section 718.2(b) & (c) of the Criminal Code that provides:

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh…
[309] Sentencing is a very individualized process. The Court must consider the unique circumstances of the offences before the Court. It must consider and weigh both aggravating and mitigating features of these offences. The Court must consider the unique circumstances of this offender. Into this mix, the Court must also consider jurisdictional factors unique to Nunavut.


[310] Many reasons can be advanced to distinguish the sentencing precedents produced by both Crown and Defense. No two cases are alike. Given the number of variables that must be considered, the search for similarity is often a fruitless exercise. While parity in sentencing is a laudable objective, in practical terms it is very difficult to achieve.

[311] The Crown urges the Court to impose a combined sentence of 25 years of imprisonment to achieve proportionality. While not unknown in Canada, sentences of imprisonment of this magnitude are extremely rare. The handful of cases involving this length of sentence are distinguishable on their facts.
[312] In the case of R v KDH, 2012 ABQB 471, 102 WCB (2d) 621 [KDH], the offender pled guilty to 27 serious sexual offences involving his children. He was convicted of one further count of sexual assault following a trial. The crimes were many and the facts associated with these crimes egregious. These offences were seriously aggravated by both a breach of trust and abuse of authority. The offender was found to have little remorse despite the entry of guilty pleas. He had a limited record with no related entries for sexual offences. KDH was sentenced to a cumulative total of 18 years of imprisonment following the application of the totality principle.

B. The sentence
[313] Mr. DeJaeger entered guilty pleas to eight less serious offences. In all but 7 of these counts, the victims still had to testify. Mr. DeJaeger went to trial on 72 counts and has now been convicted of a further 24 counts. While many of the offences in the KDH case were extremely serious, the same can be said for a significant number of offences in Mr. DeJaeger`s case involving the rape or buggery of adolescents. Many of Mr. DeJaeger`s victims struggle with the tragic human consequences of his offending to this day. KDH’s crimes were committed in Alberta, not in Nunavut. Nunavut struggles with a much higher per capita rate of commission of sexual offences against children.



[314] The proposed global sentence of 12 years of imprisonment suggested by the Defence is not proportional to the number and gravity of Mr. DeJaeger`s offences or the high moral culpability flowing from the circumstances in which they were committed. Given the present age of the offender, a 25 year sentence would likely result in this offender serving a sentence of imprisonment until death intervened.

[315] Having anxiously considered the totality principle and the principle of proportionality, the Court has determined that a global term of imprisonment of 19 years is appropriate for this offender committing these many offences in the circumstances presented here.

[316] An exemplary sentence is needed to reflect not only the high moral blameworthiness associated with the crimes, but to denounce and deter sexual offences against children and adolescents in Nunavut. Based on existing jurisprudence, this 19 year sentence is at the very high end for fixed term sentences of imprisonment in Canada.

[317] From this notional sentence of 19 years of imprisonment must be deducted a credit for the significant period of pre-trial detention already served by Mr. DeJaeger.
C. Credit for pre-trial custody
[318] Mr. DeJaeger has been in custody since his removal from Belgium and his return to Canada in January 2011. He has four years of actual detention to his credit. It is common ground between Crown and Defense that this should result in a credit toward his sentence at the rate of two for one.

[319] This enhanced credit reflects the fact that the amount of time spent in pre-trial detention is not otherwise taken into account by the correctional authorities in their calculation of Mr. DeJaeger`s parole eligibility date. Enhanced credit is also awarded to compensate for the harsh conditions associated with pre-trial detention. Detainees are not usually eligible to participate in programming until they are sentenced.

[320] While credit for pre-trial detention should ordinarily be reduced where an offender breaches court process and skips bail, many of the offences now before the Court for sentence did not exist at the point Mr. DeJaeger fled Canada.


[321] Much of the in custody pre-trial delay was caused by the Crown as it waited for the Royal Canadian Mounted Police [RCMP] investigation in Igloolik and elsewhere to be completed. There were a number of substantial admissions made by Defense in an effort to expedite the trial. In these circumstances, it is appropriate, notwithstanding the bail breach, to apply pre-trial credit at the usual rate of two for one.

[322] In the end result, Mr. DeJaeger will be afforded a credit of 8 years for his pre-trial detention. This results in a net sentence of 11 years imprisonment remaining to be served. Mr. DeJaeger will be 78 years of age at warrant expiry. Any medical concerns can be addressed by Corrections Canada.

[323] No restrictions have been put on Mr. DeJaeger`s eligibility for parole. The Court leaves the decision with respect to Mr. DeJaeger’s release on parole entirely to the discretion of the National Parole Board. Any change in Mr. DeJaeger’s medical circumstances will likely be considered by the National Parole Board.
(ii).The Court`s address to the victims
[335] This Court is powerless to undo the past. No sentence can ever compensate you for what has been taken. No sentence can ever compensate you for the pain and anguish that you have suffered. No sentence can ever return the quality of life that has been missing these past many years. For many of you, no sentence will ever be long enough, or hard enough.


[336] Your anger must be put aside. Your trust in others must be restored. You must learn to rely on the good around you, in your family, in your neighbors, and in your community. Despite what has happened to you, there is still much good in people. It is all around you. You will find that by sharing your burden with others, the burden will eventually become easier to carry.

[337] The time has now come for you to move on with your lives.

[338] The Court wishes you well in the long healing journey that lies ahead.
(iii). The Court`s address to the accused
[339] Your selfishness has devastated a generation of young Roman Catholic parishioners in Igloolik. Many lives have been irrevocably altered by your dark legacy. For many victims, the commission of your offence has marked the end of living and the beginning of their survival.

[340] You must now atone for the many wrongs that you have inflicted on others.

[341] This sentence is only the beginning of that atonement.

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