Ex-Esgenopetitj chief's appeal adjourned over possible error in sex crimes trial

The appeal of former Esgenopetitj 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 Lacytold the court he just realized Dedam was excluded from the courtroomat least twice during his trial in Miramichilast 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 Dedamwas testifyingin 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, butDedamwas 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 wantDedamto "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 untilFebruary 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 untilat least March 13 under a bail extension.

He declined to speak to reporters outside the courthouse.

Lacy told CBCNews 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 foundDedamguilty last fall of six sex crimes against three girls in the community between 1977 and 1985, whenhe was chief.

He was sentenced in December to nine years in prison.

Lacy and Fredericton-based defence lawyer T.J. Burkeare seeking to have the conviction overturned and eitherDedamacquitted on all six counts or a newtrial ordered.

Failing that, they are seeking an order reducing his "harsh and excessive" sentence tobetween three and four years.

A court transcript of the trial, obtained byCBCNews, 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 testifiedshe was raped byDedamin his "party" van in 1983.

She was out getting groceries whenDedamand 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,Dedamwas 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'

Dedamtestified 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.

Dedamdenied 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," Dedamreplied.

The Crown asked that thejury 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.

Dewareasked 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 andBurke planned toargue seven grounds of appeal on Tuesday, most of whichdealwiththe trial judge's instructions to the jury, according to their written submissionsfiled with the court.

They contend Deware's instructionswere "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 cautiousnot 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 ontheoverall effect, not by particular words used or not used, Gregory said.

If the court finds Dewaredid 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."

Thecharges Dedamwas 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 severalbail 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 functionfemales under 18 would be expected to attend, other than church, where he's not allowed to communicate with any female under 18.