Dangerous offender Cody Durocher’s appeal of his conviction for raping a 13-year-old girl in Hay River has been rejected by the NWT Court of Appeal.
The three-judge panel’s decision this week stated Durocher’s appeal, heard on April 26, was “rooted in trial fairness concerns” after he was convicted in 2016 by a jury of sexual assault and sexual interference.
It was the former Yellowknife resident’s fourth conviction for a sexual offence. He had been found guilty of the 2010 sexual assaults of two young Indigenous adult women in his home province of Alberta.
In September 2019, Durocher, 34, was declared a dangerous offender and sentenced to the maximum 14 years for sexual assault, plus a 10-year long-term supervision order.
Durocher has an extensive criminal record, in addition to the sexual assaults, he has convictions for other crimes of violence and seven convictions for breaches of court orders and other offences against the administration of justice.
Durocher is currently serving federal time at the Bowden Institution, a medium-security prison south of Red Deer, AB.
“We have considered the record, the submissions of counsel, and the reasons of the trial judge and the jury charge,” the decision stated. “We are not persuaded there is any basis for appellate intervention.”
There was no dispute about the background facts or what transpired during the trial in NWT Supreme Courtl.
Durocher’s appeal centred on the victim’s failure to return to complete cross-examination the day after an emotional time on the stand.
The victim was 15 at the time of the trial. She had already given a police statement and testified at the preliminary inquiry.
At the courthouse, she testified from another room via video link.
“While efforts had been made to make the complainant comfortable while testifying, [the trial judge found] that the complainant had ‘struggled’ through her testimony of the sexual conduct, crying and covering her face,” read the appeal court’s decision.
Chief Justice Louise Charbonneau ultimately decided to caution the jury about the lack of full cross-examination, instructing jurors that they should be extremely careful in the weight they attributed to the evidence of the complainant given there was no full cross-examination.
The appeal court panel – Alberta justices Jo’Anne Strekaf, Dawn Pentelechuk and Frederica Schutz – backed Charbonneau, ruling she “sought to properly balance the fair trial interests of [Durocher] and the difficult situation of this young complainant.”
The appeal court rejected two other grounds for appeal that queried whether Charbonneau erred in answering a question from the jury, and if she was wrong to allow two agreed statements of facts to go before the jury.