Supreme Court refuses to hear appeal of ex-Esgenoôpetitj chief convicted of sex crimes

Canada's highest court will not hear an appeal from former Esgenoôpetitj First Nation chief Wilbur Dedam, who is serving nine years in prison after being convicted in 2021 of four decades-old sex-related charges involving two young girls.

In a decision filed Thursday, the Supreme Court of Canada dismissed Dedam's application for leave to appeal the New Brunswick Court of Appeal's decision last August to uphold his conviction.

As is customary, the Supreme Court did not give reasons for its decision.

In an emailed statement, Dedam's Toronto-based lawyer Michael Lacy noted the Supreme Court "only grants leave sparingly."

"In this instance they were not persuaded it was appropriate to hear any further appeal," Lacy said.

"Mr. Dedam has exhausted all appellate remedies and will now continue to serve his sentence," he added.

In 2021, Dedam, then 68, was convicted on four of six sex-related charges involving two young girls between 1977 and 1985. A Court of Queen's Bench justice found him guilty of three counts of sexually assaulting one victim and one count of sexually touching the other.

There is a publication ban on any information that would identify the victims.

Documents filed with the Supreme Court show Lacy sought to appeal only the three sexual assault convictions.

2 key arguments

Lacy argued Dedam's case presented "an issue of national importance" related to when it's appropriate to interfere with a trial judge's credibility findings.

The New Brunswick appeal court, he alleged, failed in its "duty to [meaningfully] review the trial judge's path of reasoning" when he found the victim credible, despite some inconsistencies between her testimony and statements to police.

"It is obviously important that appellate courts not become secondary trial courts re-trying cases on appeal without regard to their statutory role. But it is equally important that appellate courts discharge their statutory duty," Lacy's 19-page memorandum of argument states.

"The Court below dismissed [Dedam's] appeal on the basis that the trial judge's credibility findings were, effectively, immune from appellate review," he wrote.

"The lower Court improperly deferred to credibility findings in the face of the trial judge failing give effect to his own conclusion that the complainant had not been honest with the Court on important matters."

In addition, Lacy argued Dedam's case involved "another important legal issue," regarding when evidence that exonerates or tends to exonerate a defendant comes out as part of the Crown's case can be used for the truth of their contents.

During Dedam's trial, the Crown called a witness who testified Dedam told her the allegations against him were false. The trial judge rejected Dedam's denial, and concluded he did not have to conduct a further analysis as to whether the exculpatory utterances were capable of raising a reasonable doubt because this step is dependent upon the testimony of the accused, and Dedam did not testify.

This, argued Lacy, was an err in law.

"This application gives the Court an opportunity to clarify when and whether, in the absence of an accused testifying, exculpatory evidence that is adduced before the trier of fact should be subject to a W.(D) analysis. Although various appellate courts have addressed this issue, this Court has never provided clear and definitive guidance on this issue," he wrote.

Crown urged court to dismiss

Crown prosecutor Patrick McGuinty, in his written response to the leave application, noted the Supreme Court in 2021 "expressed its sincere frustration with appellate courts that continued to set aside safe convictions after fair trials, not on the basis of legal error but on the basis of a highly technical parsing of trial reasons."

"In expressing its frustration, this Court noted that such improper appellate review most frequently occurred in sexual assault cases where credibility findings are challenged," wrote McGuinty.

"Accordingly, appellate courts were once again directed to conduct functional and contextual reviews of a trial judge's reasons. In the present case, the New Brunswick Court of Appeal did just that."

The court conducted a "thoughtful review" of the trial judgment, he said, and concluded there was no basis for appellate intervention.

Lacy's other argument "ignores the totality" of the appeal court's analysis on the issue, McGuinty argued. He cited the court's "fulsome review," including its conclusion that the exculpatory evidence was rejected by the trial judge.

Another historic charge dropped in September

Lacy had filed the application for leave to appeal on Oct. 4, shortly after another historic sex-related charge against Dedam was dropped.

He was accused of having "sexual intercourse with a female person" under the age of 14, between 1973 and 1974. But the Crown withdrew that charge on Sept. 12, a month before the trial was set to begin.

Dedam's other trial lawyer, Fredericton-based T.J. Burke, previously told CBC that charge was separate from the charges that led to his current prison term.

Dedam was charged in 2014 with six charges involving three alleged victims.

He was found guilty on all six charges in 2016 after a trial by judge and jury and sentenced to nine years in prison, but successfully appealed and a new trial was ordered.

He stood trial again in October 2020 and was eventually found guilty by a Court of Queen's Bench judge and sentenced in 2021 to 10 years in prison. Within hours of being sentenced, his lawyers filed an appeal and Dedam was released from custody pending the outcome.

In August, the Court of Appeal of New Brunswick upheld his conviction, but reduced his sentence to nine years.

Dedam served as chief of Esgenoôpetitj, formerly known as Burnt Church, northeast of Miramichi, on and off for about 30 years.