James Kakegamic won't be getting out of jail anytime soon.
Kakegamic's lawyer Greg Brodsky appealed the conviction for first degree murder of Jocelyn McDonald on the grounds trial judge Irwin Stach's private conversations during jury selection to discuss some potential jurors' personal reasons for not being able to serve excluded him from his own trial.
In a unanimous decision, the three member panel that heard the case for the Court of Appeal for Ontario ruled that while Kakegamic's counsel was improperly excluded from taking part in the conversation, Kakagamic suffered no prejudice during the trial as a result.
The justices also noted that the trial judge, after counsel's initial objection to the process, offered counsel the opportunity to be party to the off-the-record questioning.
"To the reasonable observer, counsel's presence ensures that the interests of the appellant are fully protected and erases the appearance that the trial judge is engaged in private conversations concerning matters that are unknown to the accused," said the decision.
Following his guilty conviction for first degree murder in Kenora Superior Court, James Kakegamic began another stage in his legal battle by immediately requesting an appeal.
Kakegamic's lawyer, Daniel Brodsky from Toronto, said he filed a motion for an appeal with the Ontario Court of Appeal Wednesday morning after meeting with his client late Tuesday night at the Kenora Jail. He said the motion was filed quickly for good reason.
"Unfortunately, the appeal process works very slowly," said Brodsky, noting it normally takes about 18 months for a case to be heard, but he is hoping to "expedite" the process.
He said the first line on the appeal, handwritten by Kakegamic, is "I'm innocent," followed by a listing of the legal grounds he wants the court to consider. Brodsky added Kakegamic has also indicated his desire to take the appeal all the way to the Supreme Court of Canada if necessary.
"He was devastated, but not surprised," said Brodsky of his client's mood following the guilty verdict.
Kakegamic, 27, was found guilty for the murder of 16-year-old Jocelyn "Chippy" McDonald and sentenced to life in prison without the possibility of parole for 25 years.
The court found that Chippy was killed in Kakegamic's Kenora apartment on Oct. 16, 2000. Her body was not discovered until March 29, 2001, near the apartment complex and Kakegamic was arrested in Winnipeg on Nov. 21, 2002.
During the five-week trial, the jury heard audio tapes and watched a video of Kakegamic admitting to undercover Ontario Provincial Police officers he strangled Chippy McDonald to death in his apartment and dumped her body, during a recorded undercover "Mr. Big" sting operation in 2002.
Brodsky said the crux of their complaint is that Kakegamic's confessions to undercover officers should not have been admitted as evidence. The defence maintained that Kakegamic was the subject of coercion and intimidation by this undercover entrapment technique.
Brodsky said police have taken advantage of what he calls, the "Mr. Big" Scenario, first used in British Columbia 10 years ago, and are using it more frequently because of its success in producing confessions. In this technique, subjects will often tell undercover officers of their own criminal wrongdoings in order to gain acceptance into their bogus criminal organizations.
However, Brodsky said these confessions - like Kakegamic's - aren't always the truth. He said subjects often lie in order to gain the acceptance of "Mr. Big" and become part of what they think could be a profitable criminal venture.
"It's not used in the United States or Great Britain because they find it's too dangerous," said Brodsky, referring to the tendency of the technique to produce false confessions. "It works, it always gets a confession."
In Kakegamic's case, the undercover officers posed as aboriginal cigarette smugglers from southern Ontario and the Crown said they only wanted James to "come clean," or tell the truth about his involvement in Chippy McDonald's death.
The defence's position was that Kakegamic was coached by the officers into admitting he killed Chippy because they needed something criminal to hold over him. They claimed Kakegamic's early confession, that he only found Chippy dead in his apartment and removed the body for fear of being blamed for her death, was not good enough for the undercover officers because it was not a criminal act, but one of desperation.
The appeal will be a tough one, said Brodsky, because they are challenging a police technique developed to infiltrate sophisticated organizations or gangs. He said this technique is the only one that works for them and the court will be reluctant to stop its usage.
"It'll be a battle," said Brodsky. "It (the Mr. Big technique) wasn't meant for the James Kakegamics of the world."
The mother of the late Jocelyn "Chippy" McDonald thanked the police investigators and Crown attorneys Tuesday evening after a jury found James Kakegamic guilty of first degree murder for her daughter's death five years ago.
"There's not enough thanks, that's all I can say," an emotional Jessie McDonald told Ontario Provincial Police lead investigator in the case, Det. Insp. Bill Olinyk, as she embraced him outside Kenora Superior Court.
McDonald, who was in court each day of the five-week trial, refused comment following the verdict. She saved her comments to thank all the investigating officers on the case from the Kenora OPP and Kenora Crown attorneys, Richard Cummine and Jana Rae Dewson, embracing each of them outside the courtroom.
A group of over 20 of McDonald's family members were jubilant in the courtroom and cries of "Thank you, thank you," directed at the jury were heard after the verdict was read at approximately 6:45 p.m.
By contrast, cries of despair came from a small group of family members and supporters of Kakegamic.
After hearing short submissions for sentencing from Cummine and defence counsel Daniel Brodsky, Justice Erwin Stach delivered a mandatory life sentence without eligibility of parole for 25 years. Defence co-counsel Greg Brodsky, was not in court on Tuesday.
"It is the sentence of this court Mr. Kakegamic, that you be sentenced for life," said Stach.
Kakegamic was also ordered to provide a sample of his DNA for the national data bank of violent and sexual offenders and given a lifetime firearms prohibition.
Kakegamic was allowed to address the court following his sentencing, and he maintained his innocence.
"I didn't kill Chippy McDonald," said Kakegamic from the prisoner's box. "That's all I got to say."
Daniel Brodsky said outside the courtroom that Kakegamic's final comment was just the first step in the appeal process.
"We'll file a notice of appeal tomorrow," said Brodsky as he left the courtroom to meet with his client at the Kenora Jail.
The jury began its deliberations Monday afternoon and continued all day Tuesday until reaching their decision.
Kakegamic, 27, was convicted for the murder of the 16-year-old McDonald, last seen at a party at his apartment at 39A Cambrian Drive in Kenora on the night of Oct. 16, 2000. Her decomposed body was not discovered until March 29, 2001, on a rocky outcrop near the apartment complex.
During the five-week trial, the jury heard audio tapes and watched a video of Kakegamic admitting to undercover Ontario Provincial Police officers that he strangled Chippy to death in his apartment and dumped her body, during a recorded undercover sting operation in 2002 that took place in both Winnipeg and Kenora.
On Nov. 21, 2002, investigators from the OPP and the Kenora Police Service arrested Kakegamic in Winnipeg.
The jury sided with the Crown's position that Kakegamic's admissions to undercover officers were the truth and not the result of coercion or intimidation as was claimed by defence attorney Greg Brodsky during the trial.
Other family members, many of them teary-eyed, embraced each other and celebrated the verdict after leaving the courtroom.
"We love each other. We care for each other. We look after each other," Mary Wesley, Jessie McDonald's aunt, said of her family.
Although satisfied with the verdict, Wesley said she was actually not happy with what happened in court. She explained she was not mad at Kakegamic and even felt sadness for him.
Ryan McDonald, Chippy's cousin and one of the last family members to see Chippy alive during the party at Kakegamic's apartment five years ago, had a different view of Chippy's convicted murderer.
"I wish they could give him the (electric) chair, but I don't know if they do that here," said a sombre Ryan McDonald outside the courthouse. "It will never bring her back."
Another of Chippy's cousins, Waylon Scott, who is also a band councillor for Wabaseemoong First Nation, said this is only the beginning of justice for crimes against First Nations people.
"Hopefully this will be a trend for fair justice in the future," said Scott of the verdict. "It was just a big sigh of relief."
Another of Chippy's great aunts, Margaret Quewezance, said the entire ordeal of the trial was emotionally tiring.
"Your emotions run high and low, not knowing what the outcome would be," said Quewezance. "It was very hard."
The jury heard stunning testimony in Kenora Superior Court Friday as James Kakegamic confided to an undercover officer, in a recorded conversation, that he found Jocelyn "Chippy" McDonald dead in his apartment on Oct. 17, 2000, and moved the body to a rocky area near the apartment complex early the next morning.
This capped off the second week of the first degree murder trial for the 27-year-old Kakegamic. The week included hours of recorded conversations played back from an undercover operation by the Ontario Provincial Police in October and November of 2002 in Winnipeg.
On Nov. 7, 2002, Kakegamic told "John", undercover officer Det. Const. Andrew Johnson, posing as an aboriginal cigarette smuggler from southern Ontario, that he returned to his apartment from the bar in the early morning hours of Oct. 17, 2000 and began drinking some more before waking up the next morning around 11:30 a.m. on the couch. He went into the spare bedroom, where Chippy had been left passed out at the end of the party the night before, and found her dead.
"She was already all blue when I woke up the next morning," Kakegamic told Johnson. "I walked in there to tell her to go home and she was all blue ... (it) freaked me out, man."
Kakegamic said he tried performing CPR to revive Chippy without success, then began to wonder and worry about how she died in his apartment at 39A Cambrian Drive, admitting he "blacked out" and has little memory of what happened after he returned.
"I wish I (could) know what happened to her," said Kakegamic. "I don't know if I did it, or if she just died of too much alcohol in her system."
Kakegamic has pled not guilty to the charge of first degree murder laid by Kenora police on Nov. 21, 2002 for the death of McDonald.
Investigators from the OPP and the Kenora Police Service arrested Kakegamic in Winnipeg more than two years after they suspect the 16-year-old from Minaki was killed in Kenora, sometime between Oct. 16-17, 2000.
Kakegamic also admitted what he told Kenora police investigating Chippy's disappearance and homicide in 2001 - that he came home to find the door unlocked and Chippy gone from the apartment - was false.
"I told them (that) cause I knew if they found her there I would be the one that's sitting in jail," Kakegamic told Johnson. "(It's) a pretty racist town, especially with the cops, and I knew that day they would start blaming me for it, you know."
As a result of his misgivings toward Kenora police, Kakegamic said he decided not to call 911 to report the death and chose to get rid of the body.
"I didn't want to go to jail for the next 20 or 30 years, so that night I just went and dumped her body, man," said Kakegamic, noting that it was around 4 or 5 a.m. the next morning, and he was sober at the time. "When I put her body down, I knew what I was doing."
Kakegamic said Chippy McDonald was fully-clothed when he found her and he made sure she also had her jacket when he moved her body, he wanted nothing of Chippy's left in the apartment to tie her death to him.
He said he was surprised it took four months to find the body, he had expected it to be found much sooner.
"I covered her up with a little bit of brush, but like I wanted her to be found," said Kakegamic. "I didn't want to be ruthless where, you know, she can't be found. I didn't go out and bury her."
Finally telling Johnson his secret seemed to be a relief for Kakegamic and it sounded as though the two embraced after the revelation.
"I never said those words before man, like I never told the whole story like that before man, never," said Kakegamic.
The trial continues today with more playback of recorded undercover recordings.