Ex-Esgenoôpetitj chief's appeal adjourned over possible error in sex crimes trial
Bobbi-Jean MacKinnon | CBC News | Posted: November 28, 2017 12:00 PM | Last Updated: November 28, 2017
Defence says Wilbur Dedam was excluded from courtroom in midst of his testimony for legal discussions
The appeal of former Esgenoôpetitj First Nation chief Wilbur Dedam on six sex crimes against three girls in the community has been delayed until February over an apparent legal error during his 2016 trial.
Dedam appeared in the New Brunswick Court of Appeal in Fredericton for his hearing Tuesday morning with about six supporters.
But the matter was quickly adjourned after defence lawyer Michael Lacy told the court he just realized Dedam was excluded from the courtroom at least twice during his trial in Miramichi last fall, which is a legal error, he said.
Lacy quoted the Criminal Code of Canada, which states "an accused … shall be present in court during the whole of his or her trial."
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One of the instances Lacy cited for the court occurred when Dedam was testifying in his own defence. The Crown and defence got into a dispute about something he said.
The jury was excused while the trial judge and lawyers discussed the point of contention, but Dedam was also excluded in error, Lacy said.
"What needed to be debated in his absence?" asked Justice Marc Richard. "What prompted everyone to take this unique decision?"
Lacy speculated the court didn't want Dedam to "tailor his evidence" in light of the objections.
'Regrettable'
"This is regrettable," said Crown prosecutor Kathryn Gregory, calling it a "difficult turn of events."
The three-justice appeal panel agreed to set the appeal over until February to give the lawyers time to make submissions. No date has been set yet.
Dedam, who has been free on bail under conditions since April 11, pending his appeal, will continue to live in the community until at least March 13 under a bail extension.
He declined to speak to reporters outside the courthouse.
Lacy told CBC News if the appeal panel agrees Dedam was excluded from his trial in error, it's unlikely it would be enough to overturn his conviction.
But it will be added to the defence's grounds of appeal, he said.
Related to rape in 'party' van
A jury found Dedam guilty last fall of six sex crimes against three girls in the community between 1977 and 1985, when he was chief.
He was sentenced in December to nine years in prison.
Lacy and Fredericton-based defence lawyer T.J. Burke are seeking to have the conviction overturned and either Dedam acquitted on all six counts or a new trial ordered.
Failing that, they are seeking an order reducing his "harsh and excessive" sentence to between three and four years.
A court transcript of the trial, obtained by CBC News, shows one of the possible legal errors raised by the defence on Tuesday is related to the allegations of a woman identified only as G.K.T. to protect her identity.
She testified she was raped by Dedam in his "party" van in 1983.
She was out getting groceries when Dedam and his wife drove by in the van, with several other people who were drinking and partying, she said.
They asked her to join them, and she drank to the point of blacking out, she said. When she came to, Dedam was on top of her with her shirt pulled up and her pants pulled down, she said.
She asked him twice to stop but was too weak to resist, she said.
'Nobody partied in that van'
Dedam testified he recalled the night in question and the only people in the van were him, his wife and two other men who, like him, were about five-foot-six to five-foot-eight, with dark hair, brown skin and a moustache.
G.K.T. was left alone in the van with one of those men, he said.
Dedam denied under cross-examination by the Crown that it was a "party" van.
'Is this something you wanted to discuss in the absence of Mr. Dedam?' - Tracey Deware, trial judge
"I'm going to suggest to you it was a van in which you had parties in the sense that you had people in it, you're drinking beer, you're playing music, you're driving around the reserve, right?" the Crown said. "That's what you used it for?"
"Nobody partied in that van cause my wife wanted to take care of it," Dedam replied.
The Crown asked that the jury be removed and New Brunswick Court of Queen's Bench Justice Tracey Deware agreed.
"Is this something you wanted to discuss in the absence of Mr. Dedam?" asked Deware.
"Yes," the Crown replied.
Deware asked Dedam to wait in the hallway.
"The sheriff will come and get you when we are ready for you. OK?"
7 grounds of appeal
Lacy and Burke planned to argue seven grounds of appeal on Tuesday, most of which deal with the trial judge's instructions to the jury, according to their written submissions filed with the court.
They contend Deware's instructions were "deficient in several respects" and that these "errors of law occasioned a miscarriage of justice."
The defence lawyers also contend the jury's guilty finding in relation to the woman identified only as G.P.T. was "unreasonable and unsupported by the evidence."
Evidence 'overwhelming'
The Crown, however, contends the defence's grounds of appeal are "without merit" and do not warrant appellate intervention.
Appellate courts must be cautious not to usurp the role of the jury, Gregory argues in her written submissions.
And a trial judge's instructions to a jury should be assessed based on the overall effect, not by particular words used or not used, Gregory said.
If the court finds Deware did err, the Crown submits that any error is "either harmless or trivial, or the evidence so overwhelming, the trier of fact would inevitably convict."
Dedam's sentence was also "well within the appropriate range," argues Gregory, citing case law that "the harm suffered by child victims of sexual assault cannot be overstated."
The charges Dedam was convicted of are based on the Criminal Code at the time of the offences. They include:
- Sexual intercourse with a female under 14.
- Sexual intercourse with a female under 16.
- Sexual intercourse without consent.
- Illicit sexual intercourse.
- Two counts of sexual assault against two females.
Out on bail
The Crown had requested a sentence of between eight and 10 years. The defence had asked the court to consider a sentence of three or four years.
Dedam must follow several bail conditions, including that he:
- Attend court as directed and deposit $10,000 with provincial court to secure his attendance.
- Live at his home and abide by a daily curfew of 7 p.m. until 7 a.m.
- Not be in the company of any female under the age of 18, with the exception of immediate family members.
- Not attend any function females under 18 would be expected to attend, other than church, where he's not allowed to communicate with any female under 18.