Herman Kaglik

Case Summary

Herman Kaglik, a 35-year-old Inuk man living in Inuvik, Northwest Territories, was convicted in 1992 of sexually assaulting his adult niece.1 Kaglik’s niece “had recovered a memory of her victimization while undergoing therapy for . . . trauma and addiction.”2 She then reported that Kaglik had committed “a despicable act” of sexual assault in March of that year.3

At Kaglik’s jury trial, the “complainant was both convinced and convincing.”4 She testified that he had forced her into a bedroom in her home, repeatedly assaulted her over the course of 15 minutes, and slapped her across the face.5 The jury heard, but rejected, evidence that Kaglik had an alibi for the time of the alleged assault.6

Kaglik was sentenced to four years’ imprisonment. The sentencing judge observed that “this type of conduct is a very serious crime, a crime that all society condemns, and especially so” since the complainant was “a member of [Kaglik’s] . . . own family.”7 The court found that Kaglik’s niece had suffered “ongoing trauma”, and that “the high level of psychological harm from the sexual violence” that Kaglik inflicted “was evident from [her] . . . demeanour at trial.”8

The court criticized Kaglik’s apparent lack of remorse – as evinced by having “denied his guilt at trial” – and found him to have “exhibited a contemptuous disregard for the feelings and personal integrity of the victim.”9 The court also noted that Kaglik had a dated criminal “conviction for indecent assault in 1974”, though he had since comported himself as “a good, hard-working member of his community.”10

Kaglik tried to appeal his conviction, but his lawyer failed to attend court appearances, which resulted in his appeal being dismissed due to delay.11

Over a year into his prison sentence, Kaglik stood trial again for three further counts of sexual assault that his niece had previously reported but were not tried together with the other charge. The jury again accepted the complainant’s evidence. Kaglik was convicted on these charges in 1993 and sentenced to six more years’ imprisonment. He would later describe his prison time as hellacious. He experienced ubiquitous violence, including frequent beatings and attempted sexual assault, and thus had to maintain a state of constant preparedness to defend himself.12

In 1997, Kaglik’s niece, who had been diagnosed with terminal cancer, contacted police to recant her allegations. Tragically, her memories of sexual assault had been created – not recovered – when she sought psychiatric help.13 The Nunavut Court of Justice has since discussed this phenomenon, citing Kaglik’s case as an example.14 Its 2014 remarks remain apposite:

The workings of the mind are akin to a deep sea. Medical scientists and forensic psychiatrists have skipped rocks across its surface . . . [but] have only achieved a limited understanding of its more visible processes. What lurks in the deepest depths of the mind remains largely unmapped and unknown.15

As the court explained in this judgment: “In the process of attempting to recover a memory that has been ‘lost’, it is possible to inadvertently create a false memory.”16 To the great detriment of both Kaglik and his niece, her course of trauma therapy itself induced a viscerally felt, but factually baseless, experience of trauma.17

The Nunanvut court observed that “[a]s in the case of an honest but mistaken identification witness, the witness with a false memory will typically present as a very convinced and convincing witness.”18 Since they “sincerely believe that the incident . . . is true,” it follows that “[t]heir demeanor . . . may be entirely consistent with one who has been victimized,” as was the case with Kaglik’s niece.19 Particularly since the witness may experience “an unconscious transference of the emotions associated with real trauma to a false memory”, they “may well [show] . . . signs of anger and indignation, disgust and embarrassment. The emotions behind the words may ring true, but this is no guarantee that the events . . . occurred as described or at all.”20

After learning of his niece’s recantation, Kaglik and his lawyer, Valdis Foldats, were able to arrange DNA testing of a semen sample from underwear seized as evidence for his second trial. In 1998, the test results confirmed that Kaglik’s DNA did not match that obtained from the semen sample. This time, Kaglik successfully appealed his conviction, and was acquitted on all counts based on the fresh evidence. He had spent over four years in prison.21

In 2000, Kaglik received $1.1 million in compensation from the federal government. In a media interview the following year, Kaglik stated that: “The money has made life easier, but it certainly hasn’t brought back the happiness I had before I was charged.”22 He had encountered difficulties in post-prison life including that he was unable to trust people and could not find stable employment. Kaglik’s case received relatively little publicity and no public inquiry has been conducted regarding his wrongful conviction.23


[1] Kent Roach, “The Wrongful Conviction of Indigenous People in Australia and Canada” (2015) 17 Flinders LJ 203 at 250 [Roach]; R v Kaglik, [1992] NWTJ No 211 (QuickLaw – PDF) at p. 1 [Kaglik]; Janice Tibbetts, “$1.1M Award for False Conviction”, Ottawa Citizen: Online (19 December 2001): n/a [Tibbetts].
[2] R v DeJaeger, 2014 NUCJ 21 at para 22 [DeJaeger].  
[3] Kaglik, supra note 1 at p. 1.
[4] Ibid.; DeJaeger, supra note 2 at para 22.
[5] Kaglik, supra note 1 at p. 1.
[6] Ibid. at p. 2.
[7] Ibid at p. 3.
[8] Ibid. at p. 2.
[9] Ibid.
[10] Ibid.
[11] Malini Vijaykumar, “A Crisis of Conscience: Miscarriages of Justice and Indigenous Defendants in Canada” (2018) 51 UBC Law Rev 161 [Vijaykumar].
[12] Tibbetts, supra note 1; DeJaeger, supra note 3 at para 22; Roach, supra note 1; Vijaykumar, supra note 11; Canadian Press, “Five years of hell in prison for rape he didn't commit; Freed man gets $1.1-million award for conviction error” (20 December 2001), Waterloo Region Record: A6 [Canadian Press].
[13] DeJaeger, supra note 3 at paras 22, 26; Tibbetts, supra note 1.
[14] DeJaeger, supra note 3 at paras 22-27.
[15] Ibid. at para 25.
[16] Ibid. at para 26.
[17] Ibid. at para 22.
[18] Ibid. at para 27.
[19] Ibid.; Kaglik, supra note 1 at p. 2.
[20] DeJaeger, supra note 3 at para 27; Canadian Press, supra note 12; Tibbetts, supra note 1.
[21] DeJaeger, supra note 3 at paras 23-24; Vijaykumar, supra note 11; Canadian Press, supra note 12; Tibbetts, supra note 1.
[22] Tibbetts, supra note 1.
[23] Ibid.; Roach, supra note 1 at pp. 250-251.

 

 

Case Details

  • Full name:

    Herman Kaglik

  • Gender identity:

    Male

  • Race/ethnicity:

    Indigenous (First Nations, Inuit, Métis, Native American, etc.)

  • Age - at the time of conviction:

    35

  • Charges - specific offences:

    Sexual assault

  • Date of conviction:

    1992-12

  • Date wrongful conviction was overturned:

    1998

  • Sentence - total time served:

    04 years, 04 months, 00 days

  • Legal mechanism by which wrongful conviction was overturned:

    New evidence on first appeal

  • Status of alleged crime:

    Unknown

  • Compensation Received?

    Yes

  • Guilty plea?

    No

  • Cause(s) of wrongful conviction:

    Kaglik was wrongfully convicted of sexually assaulting his niece, who “recovered” false memories that were inadvertently induced in a therapy setting. DNA testing exonerated Kaglik after the complainant recanted her evidence.