2022 NBCA 41, 2022 NBCA 41

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 57-21-CA WILBUR DEDAM APPELLANT WILBUR DEDAM APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Dedam v. R., 2022 NBCA 41 CORAM: The Honourable Chief Justice Richard The Honourable Justice Quigg The Honourable Justice Green Dedam c.

R., 2022 NBCA 41 CORAM : l’honorable juge en chef Richard l’honorable juge Quigg l’honorable juge Green Appeal from decisions of the Court of QueenBench: February 26, 2021 (conviction) May 25, 2021 (sentencing) Appel de décisions de la Cour du Banc de la Reine : le 26 février 2021 (déclaration de culpabilité) le 25 mai 2021 (détermination de la peine) A Publication Ban was issued by the Court ofQueen’s Bench respecting this matter in 2016.It remains in effect. History of Case: En 2016, la Cour du Banc de la Reine a rendu enl’espèce une ordonnance de non-publication quiest toujours en vigueur.

Historique de la cause : Decisions under appeal: 2021 NBQB 47 (conviction) 2021 NBQB 114 (sentencing) Décisions frappées d’appel : 2021 NBQB 47 (déclaration de culpabilité) 2021 NBQB 114 , 2021 NBBR 114(détermination de la peine)

Preliminary or incidental proceedings: 2016 NBQB 223 Procédures préliminaires ou accessoires : 2016 NBBR 223 Appeal heard: February 22, 2022 Appel entendu : le 22 février 2022 Judgment rendered: August 11, 2022 Jugement rendu : le 11 août 2022 Reasons for judgment: The Honourable Justice Quigg Concurred in by: The Honourable Chief Justice Richard The Honourable Justice Green Counsel at hearing: For the appellant: Thomas J. Burke, Q.C., and Michael W.

Lacy For the respondent: Patrick McGuinty Motifs de jugement : l’honorable juge Quigg Souscrivent aux motifs : l’honorable juge en chef Richard l’honorable juge Green Avocats à l’audience : Pour l’appelant : Thomas J. Burke, c.r., et Michael W. Lacy Pour l’intimée : Patrick McGuinty THE COURT The appeal is dismissed. The application for leave to appeal sentence and that appeal are allowed. The sentence is varied to be a term of nine years’ incarceration. LA COUR L’appel est rejeté. La demande en autorisation d’appel de la peine et l’appel de la peine sont accueillis.

La peine est modifiée et fixée à neuf ans d’incarcération. The judgment of the Court was delivered by QUIGG, J.A. I. Introduction [ 1 ] In the late 1970s and 1980s, Wilbur Dedam and his family resided on the Esgenoôpetitj First Nation. Across the street lived a couple and their seven children, five daughters and two sons. Tragically, the mother died in 1978 and the father, in 1981. Shortly after their father died, the children went to live with Mr. Dedam and his family. Thirty years later, three of the daughters, LMT, GTP and GKT, alleged Mr. Dedam had sexually abused them.

He was charged with various offences, tried before a court composed of a judge and jury, convicted and sentenced to nine years in jail. His conviction was subsequently overturned, and a new trial

was ordered: Dedam v. R., 2018 NBCA 52, [2018] N.B.J. No. 179 (QL). [2] In October and December 2021, Mr. Dedam stood trial for six counts of historic sexual offences against thethree children, LMT, GTP and GKT. Mr. Dedam was charged with violations of various provisions of the Criminal Code, R.S.C. 1970,c. C-34, in effect on the dates of the alleged incidents:

a) having sexual intercourse with a female who is not his wife and who is under the age of fourteen years (s. 146(1));

b) having sexual intercourse with a person over the age of fourteen but under the age of sixteen who is not his wife and who is ofpreviously chaste character (s. 146(2));

c) having intercourse, without consent, with a person who is not his wife (s. 144);

d) having illicit sexual intercourse with his foster child or ward of the county (s. 153(1)); and

e) two counts sexual assault upon a female person (s. 246.1). [3] LMT alleged an ongoing pattern of sexual abuse between 1977 and 1982, which is covered in counts one throughfour on the Indictment. GTP alleged a single incident of sexual assault that occurred in a van in 1983, which is count five. GKT alleged asingle incident where Mr. Dedam rubbed her thigh sometime in 1984 or 1985, which is count six. [4] In 2016, Mr. Dedam was convicted of all counts after a trial by judge and jury and was sentenced to a globalsentence of nine years’ imprisonment.

As mentioned above, he was later successful on appeal, and a new trial was ordered. [5] At the retrial. Mr. Dedam ultimately elected to be tried by judge alone. On February 26, 2021, the trial judgeconvicted Mr. Dedam of four of the six charges: ss. 146(1) and (2), s. 144, and one count of violating s. 246.1. The primary issue raisedby the defence with respect to counts one through four was LMT’s credibility and whether the sexual encounters had occurred. The trialjudge convicted Mr. Dedam on counts one through three but acquitted him of count four.

The trial judge also acquitted him on countfive, the count respecting a sexual assault against GTP, as he had concerns about identity. Mr. Dedam was convicted on count six. OnMay 25, 2021, the trial judge imposed a global sentence of 10 years’ imprisonment and issued some ancillary orders. [6] Mr. Dedam now appeals those convictions and alleges the trial judge committed several legal errors.Alternatively, he submits the trial judge conducted a defective sentencing analysis and asks that his sentence be reduced.

In relation tocounts one to three, he submits the trial judge, after identifying serious concerns with respect to LMT’s credibility, failed to explain howhe reconciled those concerns when he accepted that her evidence proved counts one to three beyond a reasonable doubt. Mr. Dedam alsoargues the trial judge misapplied the R. v. W.(D.), (CSC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26 (QL), frameworkwith respect to what he claims is exculpatory evidence that emerged through one of the Crown witnesses.

With respect to count six, Mr.Dedam says the verdict is unreasonable. [7] For the reasons that follow, I would dismiss the appeal against conviction, grant leave to appeal sentence andallow that appeal. II. Background [8] In providing the background of this appeal, I will follow the route taken by Mr. Dedam in his writtensubmission (at paras. 1-44), the Crown having indicated it takes no issue with the facts therein outlined.

[ 9 ] Mr. Dedam dealt separately with the counts as they pertained to each complainant. I intend to do the same. A. Sexual assaults against LMT [ 10 ] LMT grew up across the road from the Dedam residence. She recalled her first memory of Mr. Dedam from when she was approximately six years of age. According to LMT, Mr. Dedam and his wife were friends with her mother. Mrs. Dedam often babysat LMT and her siblings and assisted her mother.

As she got older, LMT went to the Dedam residence “quite often” because she regularly babysat for them beginning when she was approximately 10 years of age. [ 11 ] LMT testified she was 12 years old when Mr. Dedam first “approached” her. She had gone to the Dedam residence to babysit. Mr. Dedam was sitting on the corner of the sofa. He approached her and rubbed her leg. While doing so, he told her he liked her and found her very pretty. LMT testified she was scared and confused and she felt uncomfortable and eventually moved. Before she left, Mr.

Dedam told her that, if she said anything, he would tell her father that she “came on” to him. Mr. Dedam also told her, “when you come back I will know it’s okay.” LMT interpreted this to mean that, if she went back to Mr. Dedam’s residence, she was giving him permission to be “involved” with her. [ 12 ] Several weeks later, Mrs. Dedam called LMT to babysit. She testified she went because her parents told her to go and she did not want to explain to her father why she did not want to go. Later that night, after the Dedams had been drinking, LMT was sitting next to Mrs. Dedam against the wall. Mr.

Dedam was sitting across from her, when he began playing “footsies” with her, rubbing his leg up against hers. According to LMT, Mr. Dedam had a “weird smile” on his face. LMT explained that “for him […] it was me giving him a signal saying that it was okay.”

(1) The first sexual assault [ 13 ] According to her testimony, the next time LMT went to the Dedam residence was bingo night, which occurred every Wednesday and Sunday. LMT testified Mrs. Dedam would go to bingo with her friend, and she regularly called LMT to babysit. According to LMT, this was the first time Mr. Dedam sexually assaulted her. [ 14 ] LMT testified that, on that occasion, she bathed the Dedam children. One of the children, DD, slept in her parents’ room. Once DD was asleep, Mr. Dedam took LMT into the bedroom. According to LMT, Mr. Dedam began kissing her. LMT turned away.

He opened a window so he could hear if anybody was coming. He then placed a towel underneath LMT “because he didn’t want to make a mess on the bed.” According to her, Mr. Dedam pulled her pants down and inserted his penis into her vagina. At the time, LMT was a virgin. The encounter lasted about 10 to 15 minutes. She recalled Mr.

Dedam telling her “she was not a virgin because she did not bleed.” [ 15 ] Despite testifying that her evidence was the product of clear memories, cross-examination revealed numerous inconsistencies between LMT’s direct evidence regarding this assault and statements about the incident she had made on previous occasions. On prior occasions, LMT stated that the children were not there when the first sexual assault occurred, that it happened in the afternoon, not when Mrs. Dedam went to play bingo, and that it occurred in the boys’ room, not DD’s room.

LMT was also confronted with previous contradictory statements regarding whether Mr. Dedam was sober or stoned when this incident happened. LMT had no response when defence counsel told her she had previously testified he had not consumed either drugs or alcohol.

(2) The routineness of the assaults [ 16 ] LMT testified that, after this first assault, the sexual assaults “became almost a routine” and took place when she went to babysit, either when Mrs. Dedam went to bingo, or when Mr. Dedam was out playing sports and would come home early. LMT testified, “if I went to go babysit I knew that we were going to have sexual intercourse.” According to LMT, the assaults occurred in DD’s bedroom, the hallway, the living room, or the kitchen. Each time, Mr.

Dedam opened a window “just a little bit so he would hear somebody coming up the steps.” [ 17 ] During her testimony, LMT described two incidents she said she clearly recalled. The first occurred when Mr. Dedam sexually assaulted her in the hallway. According to LMT, Mr. Dedam felt safe in the hallway because it was close to the bathroom, where he could wash afterward. This time, LMT believed the children were in day camp, and Mrs. Dedam called her to the

Dedam residence to do some cleaning. While LMT was standing against a wall, Mr. Dedam pulled her pants down and began fondling her. According to LMT, Mr. Dedam then attempted to insert his penis into her vagina but got frustrated because he was having trouble doing so. As a result, Mr. Dedam began to lose his erection and fondled himself to become erect again. He was then able to engage in sexual intercourse with her and ended by ejaculating into his hand, at which point he went into the bathroom. [ 18 ] The second incident occurred the summer after her mother passed away, in 1978. LMT went to Mr.

Dedam’s residence to babysit and Mr. Dedam assaulted her again. During the assault, LMT’s father knocked on the Dedams’ front door. Mr. Dedam hurried LMT into his bedroom, with her pants still around her knees. When Mr. Dedam opened the door, LMT heard her father ask if she was there. Mr. Dedam denied she was. LMT heard her father walking around, but he did not go to the bedroom. Once her father left, Mr. Dedam led her out the back door. LMT went through the field to her uncle’s house to see her cousin C. She asked C to lie for her and confirm that LMT was with C if LMT’s father asked.

According to LMT, her father was violent and would beat her if he found out Mr. Dedam had been sexually assaulting her. C was not called as a witness at trial.

(3) Tracking her menstrual cycle [ 19 ] LMT testified that, to avoid getting her pregnant, Mr. Dedam would ejaculate in his hand during the assaults, and he would also track her menstrual cycle, which he was able to do because Mrs. Dedam bought LMT’s feminine hygiene products. LMT testified the purpose in doing so was to know when to avoid having sexual intercourse with her. He began doing this after the first sexual assault and told her when it was safe to ejaculate inside her so she would not get pregnant.

This evidence was part of LMT’s recollection of being sexually assaulted on a regular basis. [ 20 ] An inconsistency emerged with respect to this testimony. During cross-examination, LMT maintained she had always had a clear memory of Mr. Dedam tracking her menstrual cycle, that it was “clear as day” and not something that she had ever forgotten. It was clear in her mind as it was an integral part of the sexual assaults of which she was a victim. LMT was presented with her statement to police in 2014, wherein she explained she had only recalled Mr.

Dedam tracking her menstrual cycle shortly before the interview as a result of her doing a pregnancy test with her own daughter. LMT initially stated it was a “trigger point” for her and just a “manner of speech” before she provided extended testimony regarding the experiences she had endured and her memory. LMT also claimed it was a “dialect” issue.

(4) The sexual assault during her father’s wake [ 21 ] On February 21, 1981, LMT’s father passed away. The wake took place at LMT’s family home. It lasted for three days and two nights. LMT testified that, on February 23, 1981, she was at her house washing dishes with Mrs. Dedam. All her family members were there. It was past midnight, and LMT told Mrs. Dedam she was going to go to the Dedam residence to lie down. According to LMT, when she got there, Mr. Dedam, who had been drinking for two days, was present. LMT went to DD’s bedroom, locked the door and laid down. Mr.

Dedam went to the room, pried open the door and entered. According to LMT, Mr. Dedam whispered in her ear that “he needed somebody too,” and then pulled down her pants and assaulted her. LMT testified these events stood out in her mind. While other alleged assaults were described generally and memories of individual events were not distinct, according to LMT, the same could not be said about this event. [ 22 ] As with the tracking of LMT’s menstrual periods, an inconsistency arose during cross-examination.

LMT stated she had always remembered the sexual assault that occurred during the wake, and she denied any suggestion she had repressed the memory. For her, it was a vivid and clear memory, something she would never forget. She denied she had forgotten about it and then remembered it later. LMT was then confronted with her 2014 statement to the police wherein she said the following about the incident: the other thought that came before I came here for the interview which has shocked the living daylights out of me was that [Mr.

Dedam] sexually molested me the night of my father’s first wake. [Emphasis in original; trial decision, para. 94] [ 23 ] Confronted with this inconsistency, LMT provided a series of non-responsive answers and evolving explanations. She claimed the inconsistency arose because she did “not speak [her] words correctly in a correct English manner” and she had been “peeling back memories like an onion.” At certain points, defence counsel enlisted the assistance of the trial judge to direct LMT to provide responsive answers.

In the end, she was unable to provide any explanation for how she could claim to have always remembered something so clearly, which she told the interviewing officer that she had just remembered in 2014. LMT was also confronted with inconsistencies regarding the length of the incident.

(5) LMT moves in with the Dedam family [ 24 ] Shortly after her father’s passing, LMT and her siblings came into the Dedams’ care. According to LMT, the sexual assaults continued, but with less frequency given the number of people in the residence. LMT testified that, on some occasions while she was sleeping, Mr. Dedam would pace back and forth and whisper her name or touch her foot. She would get up, and they would go to the living room where a sexual assault would occur while Mrs. Dedam was asleep in the Dedams’ bedroom.

LMT explained that the Dedams would often host parties during which they would drink and smoke marijuana, which resulted in Mrs. Dedam sleeping soundly. [ 25 ] LMT alleged that once when Mrs. Dedam was passed out on the bed, Mr. Dedam took her into the Dedams’ bedroom, spread a towel on the floor and assaulted her on the floor next to the bed, before ejaculating onto his hand and the floor. At one point, Mrs. Dedam’s hand slipped off the bed and hit Mr. Dedam while he was assaulting LMT, and he told her to go back to bed.

(6) The social worker − Malcolm Saulis [ 26 ] LMT testified she knew Malcolm Saulis as the social worker in the community, and she went to see him one day with two of her younger sisters. LMT testified she told Mr. Saulis that Mr. Dedam was “bothering” her and her sisters. LMT testified she believed that Mr. Dedam was “sexually bothering” her sisters as well. Her purpose in going to meet Mr. Saulis was to have her family removed from the Dedam residence. LMT spoke to Mr. Saulis alone and informed him that Mr. Dedam was “bothering” them and that they wanted to be placed in foster care.

She testified she went to see him three times, though on the last occasion he was not there. [ 27 ] Mr. Saulis testified for the Crown. He was the social worker in Esgenoôpetitj when the complainants went to live with the Dedams. He recalled conducting a site visit after the Dedams assumed care of the complainants, and he found no issues of concern. Mr. Saulis testified that, several weeks after that visit, two of the children came to visit him and one said that Mr. Dedam was “bothering” them, coming into their room at night and touching them. Mr.

Saulis believed one of the children with whom he spoke was 10 or 11 years of age. He only recalled a single visit. Mr. Saulis ultimately referred the matter to child protection staff in Newcastle for investigation.

(7) LMT leaves the Dedam residence [ 28 ] When she was 17 years of age, LMT was expelled from the Dedam residence because of an argument regarding a dance she wished to attend. Mr. Dedam would not allow her to go. According to LMT, Mr. Dedam pointed at her, and she slapped his hand away. Mr. Dedam then told her to “get the F out, get your clothes.” She called a friend, who in turn contacted Duane Augustine and asked him to pick LMT up. Mr. Augustine was the only one with a vehicle at that time. The friend who made the phone call was Mr. Augustine’s niece. Mr.

Augustine did so, and, while driving her to Eel Ground First Nation, LMT told him that Mr. Dedam had sexually assaulted her. When Mr. Augustine asked if she wanted to contact the police, LMT replied she did not want to. Mr. Augustine testified to his recollection of this event. During cross-examination, Mr. Augustine testified he remembered this incident only when he spoke to LMT in 2014, shortly before she made her report to police. When she raised it, he told her he did not recall what she had said. Mr.

Augustine agreed that LMT might have told him what she had said before he recovered the memory. [ 29 ] At the conclusion of LMT’s testimony, she asked to address the court and stated, “I am not a vicious person. I am not a liar. I speak the truth.” B. The allegations of GKT [ 30 ] GKT is the younger sister of LMT and GTP. Like LMT and GTP, GKT knew Mr. Dedam growing up, and moved in with the Dedams after her father’s death, when she was approximately eight years of age. Initially, she slept in the same bed as LMT but, after Mr. Dedam renovated and enlarged the residence, GKT slept in a room upstairs with Mr.

Dedam’s daughter, DD.

[ 31 ] As they grew up, the siblings began to leave the Dedam home. After her sisters departed, GKT had no relationship with them because Mrs. Dedam did not allow visit. GKT testified that she did not want to remain with the Dedam family. She missed her siblings and feared Mr. Dedam, so she avoided him.

When asked to explain her fear, GKT testified that it was “just because of the stuff he would say [...] just I don’t know pacing the floors at night in the hallways or standing over when [we] were sleeping or – I just grew fearful because I wanted to see my family and I didn’t know why I wasn’t allowed.” GKT was unable to describe why the pacing frightened her other than explaining that “[i]t was just an eerie feeling like when you are little kid sleeping and someone is standing over you and it’s more than once you just kind of start to get scared.” GKT testified that, without her family, she felt alone: “I didn’t have anyone who cared or comfort me.” [ 32 ] GKT testified that, one evening, she fell asleep while watching TV in the living room with DD, who also fell asleep.

When she woke up, Mr. Dedam was standing over her and told her he was taking DD up to bed. GKT went to wake DD, but Mr. Dedam told her that he would just carry DD to bed. GKT followed them upstairs, where Mr. Dedam laid DD down and covered her. GKT got into her bed as well, and Mr. Dedam left the room. GKT testified hearing Mr. Dedam pacing before he came back in and sat on the bed beside her. Mr. Dedam began to rub her thigh and told her he wanted to make love to her. GKT began to cry because she did not like what he was doing. Mr.

Dedam got up and resumed pacing in the hall, before returning and telling her it was okay. GKT asked where Mrs. Dedam was, and he did not reply but left the room. GKT explained that she asked about Mrs. Dedam because she was scared Mr. Dedam was going to hurt her. [ 33 ] During cross-examination, GKT acknowledged she had no concept as to what the phrase “make love to you” meant. She also recalled Mr. Dedam telling her, “It’s okay, I love you.” GKT accepted evidence that she had given at the preliminary inquiry to the effect that she did not know what to make of Mr.

Dedam’s comments, and that it was really more of a feeling that she had. [ 34 ] According to GKT, a little while after that incident, at her sister JT’s urging, GKT asked Mr. Dedam in front of Mrs. Dedam why he told her not to tell his wife (although she did not testify that Mr. Dedam said this to her when describing the incident). According to GKT, Mrs. Dedam looked at Mr. Dedam and told GKT to go to school. GKT also told her sister JT what happened. JT saw GKT sitting on the Dedam’s porch and asked to speak to her. GKT initially refused because she did not want to get in trouble.

But when JT inquired as to why she was always outside, GKT told her she feared Mr. Dedam and explained why. It was after speaking with JT that GKT left the Dedam residence and returned to her family home. [ 35 ] JT testified for the Crown. There were differences between her account and GKT’s. She did not recall telling GKT to confront Mr. Dedam. Her evidence was that GKT told her the incident had happened the night before and that, when she heard this, she immediately took steps to remove GKT from the Dedam household, leaving GKT no opportunity to confront Mr.

Dedam. [ 36 ] GKT testified that, years later, when she was in her 30s, she confronted Mr. Dedam about his actions at a party. She told him, “You know what you did to me, you know what you did to my family.” GKT then told him that he did not destroy her, and that she forgave him. According to GKT, Mr. Dedam acknowledged in response that he remembered doing it, although GKT stated that “he didn’t specify exactly what part” he remembered doing. [ 37 ] GKT explained she reported the incident to the police because her sisters “were never well” and often spoke about what had happened.

They all agreed that they needed to move on. The only way they could do so was either to report the assaults to the police, or never to talk about them again. They agreed to call the police. C. The “exculpatory” evidence of Barbara Martin [ 38 ] As part of its case, the Crown called Barbara Martin, who was employed by the Esgenoôpetitj First Nation in 1982 as a community development worker. She had previously worked there in 1980 under the supervision of Mr. Saulis but testified that, in the summer of 1982, Mr. Saulis was no longer there. During that summer, Ms. Martin described an occasion when Mr.

Dedam arrived at her office and asked her to talk to the complainants because they were saying he was “bothering” them, and he wanted them to stop. Ms. Martin understood Mr. Dedam to be referring to allegations of sexual abuse by saying “bothering.” He appeared “furious or angry.” [ 39 ] During cross-examination, Ms. Martin agreed that, when Mr. Dedam spoke with her, he denied “bothering” the sisters and made clear that he needed her help addressing the false allegations with them because he did not know what to do.

[ 40 ] She was uncomfortable with the request because she was not trained as a social worker but agreed to speak to the complainants. When she arrived at the Dedam residence, the sisters were gathered in a circle in the living room. Ms. Martin believed that LMT and GTP were there but was uncertain whether GKT was. Her impression was that they were scared. Mr. and Mrs. Dedam scolded them and warned them that, if they kept making these accusations, they could be taken away from the residence and separated. The girls said little but appeared very distressed. Ms.

Martin told the girls, “if this is not true then they really should not be saying these kinds of things.” She testified she was there for about half an hour. D. The position of the defence [ 41 ] It was the position of the defence that LMT was not a credible witness given the significant inconsistencies in her evidence. The defence also relied on the exculpatory statements of Mr. Dedam as recounted by Ms. Martin. In relation to count five, the defence submitted that the identification was insufficient to prove the count beyond a reasonable doubt.

In relation to count six, the defence challenged the reliability of GKT’s testimony and argued she misinterpreted Mr. Dedam’s conduct on the night in question. E. The trial judge’s decision [ 42 ] On February 26, 2021, the trial judge delivered his decision. He convicted Mr. Dedam of counts one (s. 146(1) from 1977 to 1978), two (s. 146(2) from 1978 to 1980) and three (s. 144 from 1980 to 1982) in relation to LMT, and count six (s. 246.1(1)) in relation to GKT. The trial judge acquitted Mr. Dedam of count four relating to LMT and count five relating to GTP. [ 43 ] The trial judge’s reasons were lengthy.

He did not rely on Mr. Augustine’s evidence. With respect to Mr. Saulis’ evidence, the trial judge determined he would limit its use “to assessing the evidence of LMT, that she went to visit Mr. Saulis around the time suggested and asked to be removed from the Dedam home.” The trial judge also addressed the evidence of Ms. Martin, concluding that he could “see little exculpatory in the words attributed to Mr. Dedam by Ms.

Martin, in the circumstances in which they were reportedly said.” [ 44 ] The trial judge began his assessment of LMT’s allegations by observing that her behaviour during cross- examination “brings into play the reliability and credibility of LMT’s evidence.” The trial judge identified two main inconsistencies which required “closer examination”: (1) when LMT recalled the sexual assault that was alleged to have occurred during her father’s wake; and (2) when LMT remembered that Mr. Dedam tracked her menstrual cycle.

In assessing these inconsistencies, the trial judge rejected her explanations and commented, “I cannot shy away from the credibility problem that she created by telling the police something different, in some respects, from what she told me and then, provided nonsensical explanations when pressed.” Although he rejected LMT’s evidence on these points, the trial judge concluded, “there is much of LMT’s other evidence which I do accept.” [ 45 ] Count one – The trial judge convicted Mr.

Dedam on count one on the basis that he found “LMT’s evidence on the core components of the sexual encounter to be believable” and did not find that the “inconsistencies undermine the essential facts of the count.” [ 46 ] Count two – The trial judge also convicted Mr. Dedam on count two, remarking that “listening to LMT describe certain incidents with some precision leaves me with no reasonable doubt.” [ 47 ] Count three – With respect to count three, covering the period between June 1980 and June 1982, the trial judge indicated it was during this period that LMT reported the allegations to Mr. Saulis.

The trial judge acknowledged that “reporting the assaults does not make it more likely to be true,” but concluded “the evidence presented by LMT satisfied me that the ongoing behaviour is deserving sanction.” [ 48 ] Count four – The trial judge acquitted Mr.

Dedam on count four, recognizing its foundation in the sexual assault connected with LMT’s father’s wake, on the basis that the court “cannot sanction the manner in which LMT addressed the inconsistency once it was placed in front of her in cross-examination.” Because her “clouded” testimony on this point could not be reconciled, the trial judge concluded the Crown had not proved the count beyond a reasonable doubt.

[ 49 ] Count five (GTP) – The trial judge acquitted Mr. Dedam of count five, the sexual assault against GTP in a van, stating, “I am not convinced that I can safely rely on the identification evidence presented to support a conclusion beyond a reasonable doubt that it was Mr. Dedam who assaulted GTP, as I believe she was.” [ 50 ] Count six (GKT) – The trial judge rejected Mr. Dedam’s submission that GKT might merely have misunderstood his expression of parental love as “not credible” concluding, “[o]n the evidence before me, I find little to support that notion.” The trial judge accepted that Mr.

Dedam “uttered the words to G.K.T. she attributed to him and under the circumstances and in the manner she described.” F. Sentencing [ 51 ] The Crown sought a global sentence in the range of 10 to 12 years, while counsel for Mr. Dedam argued that an appropriate sentence was in the range of five to six years. The trial judge sentenced Mr. Dedam to 10 years’ imprisonment on counts one and three, five years’ imprisonment on count two and one year of imprisonment on count six, all to run concurrently. III. Grounds of Appeal [ 52 ] Mr. Dedam submits the trial judge made the following errors: a.

The reasons were insufficient in respect of the convictions on counts one to three. The trial judge failed to explain how he resolved the concerns he identified with the complainant LMT’s testimony and why he was able to accept some of her evidence notwithstanding those concerns; b. The trial judge failed to properly apply the W.(D.) framework in assessing Mr. Dedam’s exculpatory out-of-court statements; c. The verdict on count six was unreasonable; and d. The trial judge erred in imposing a sentence that significantly exceeded the sentence imposed after Mr.

Dedam’s first trial, effectively failing to give effect to the acquittals. IV. Analysis A. Were the trial judge’s reasons insufficient? [ 53 ] Many of Mr. Dedam’s grounds of appeal are invitations for this Court to scrutinize the trail judge’s reasons. The Supreme Court has strongly and repeatedly warned appellate courts against doing so. In R. v. G.F. , 2021 SCC 20 , [2021] S.C.J. No. 20 (QL) , Karakatsanis J., writing for the majority, stated:

Nor did the trial judge err by failing to review the jurisprudence on when intoxication results in incapacity to consent. In the Court ofAppeal’s view, the trial judge’s reasons could be read as equating any degree of intoxication with incapacity to consent. Obviously, suchan equation would be an error in law. However, in the context of this trial, no such reading was available. Given that the trial judgeaccepted the complainant’s testimony of her extreme intoxication, “any degree of intoxication” was not a live issue.

This Court hasconsistently reiterated the importance of a functional and contextual reading of the trial judge’s reasons. The duty of the appellate courtis to determine whether the aggrieved party understands what the trial judge decided and why, and whether the reasons permit appellatereview. In this case, the trial judge’s reasons were sufficient to satisfy this purpose.

I would also take this opportunity to discourage thetechnical search for error and to re-affirm the importance of approaching a trial judge’s reasons with sensitivity to the trial judge’s roleand advantage in making findings of fact and credibility. […] This Court has repeatedly and consistently emphasized the importance of a functional and contextual reading of a trial judge’s reasonswhen those reasons are alleged to be insufficient: Sheppard, at paras. 28-33 and 53; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, atpara. 19; Hill v.

Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 101; R. v. Dinardo,2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 15; R. v. Laboucan, 2010 SCC 12,[2010] 1 S.C.R. 397, at para. 16; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 10, 15 and 19; R. v. Villaroman, 2016 SCC33, [2016] 1 S.C.R. 1000, at para. 15; R. v. Chung, 2020 SCC 8, at paras. 13 and 33. Appellate courts must not finely parse the trialjudge’s reasons in a search for error: Chung, at paras. 13 and 33.

Their task is much narrower: they must assess whether the reasons,read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in amanner that permits effective appellate review. As McLachlin C.J. put it in R.E.M., “The foundations of the judge’s decision must bediscernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded”: para.17.

And as Charron J. stated in Dinardo, “the inquiry into the sufficiency of the reasons should be directed at whether the reasonsrespond to the case’s live issues”: para. 31. [Emphasis added; paras. 5, 69] [54] Mr. Dedam submits the trial judge’s assessment pertaining to counts one to three (regarding LMT’s testimony)is legally flawed in two respects. Counsel for Mr. Dedam categorizes the errors into sub-issues: (

i) the trial judge failed to meaningfullyexplain how the two significant concerns he identified respecting LMT’s testimony, which were central to her credibility, did notpreclude him from accepting the “core components” of her evidence beyond a reasonable doubt; and (ii) the trial judge failed to explainwhy other inconsistencies in LMT’s narratives regarding incidents she claimed to clearly recollect did not undermine her credibility andreliability. The two significant concerns to which Mr. Dedam refers in the first sub-issue are: (1) the claim that Mr.

Dedam was trackingthe complainant’s menstrual cycle; and (2) the sexual assault that happened after her father’s wake. The trial judge rejected LMT’stestimony on these two points, citing the inconsistencies were “material,” unlike the other inconsistencies regarding time or location. Mr.Dedam suggests these two inconsistencies strike at the “heart” of LMT’s overall credibility. [55] It is beyond dispute a trial judge may accept some, none, or all of a witness’ evidence. Despite this, Mr.

Dedamsubmits the trial judge failed to articulate why he accepted central portions of LMT’s evidence despite voicing concerns regarding someinconsistencies contained in her evidence. Therefore, this ground of appeal amounts to an insufficient reasons argument. [56] In Wilson v. R., 2013 NBCA 38, 412 N.B.R. (2d) 100, Richard J.A., as he then was, stated appellate courtsmust “not expect a trial judge to articulate in minute detail the precise reasoning path followed to reach a verdict” (para. 2). [57] In this case, the trial judge relied on the Court of Appeal for Ontario’s decision in R. v. M.G. Ont.

C.A., (ON CA), [1994] O.J. No. 2086 (QL) (C.A.), leave to appeal refused, 1994 S.C.C.A. No. 390, which stands for theproposition that inconsistencies vary in their nature and importance (at para. 23). Although some may be minor, others may requiredeeper scrutiny. The trial judge was acutely aware of the issues in play and discussed them at length in his decision. He addressed hisconcerns with LMT’s testimony, including what he described as material inconsistencies (at paras. 115-128).

Despite the concerns helisted, the trial judge made it unequivocally clear that much of LMT’s evidence carried with it the “hallmarks” of credible and reliablewitness testimony. He went on to write that there was much of LMT’s evidence that he did accept, finding the identified concerns withher evidence did not erode her reliability and truthfulness on the core elements of counts one to three.

Critically, the trial judge made agripping conclusion in his assessment of LMT’s evidence on count one: “I believe her.” With respect to count two, the trial judgeexplained, “LMT’s testimony to the routine nature of the sexual assaults was compelling to me.” In the end, the trial judge canvassedLMT’s evidence in its entirety and was satisfied that he could accept the critical parts of her evidence “without finding that theinconsistencies undermine the essential facts of the count.” [58] In my view, the trial judge took the correct approach.

He did not fully believe LMT’s testimony because ofthe two material inconsistencies. He used this reasoning to reject other evidence, which purported to prove Mr. Dedam’s guilt. Hereferred to other inconsistencies as “peripheral,” and otherwise not material enough to warrant dismissal of the core evidence tenderedregarding the actual occurrence of the assault. In R. v. W. (R.), (CSC), [1992] 2 S.C.R. 122, [1992] S.C.J. No. 56 (QL),the Supreme Court stated, “the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be

considered in the context of the age of the witness at the time of the events” (para. 26 cited to QL). The trial judge reconciled the importance of consistency with the trouble of memory, stating, “inconsistencies must also be considered in relation to evidence of what happened in childhood offered by that person when an adult.” The trial judge correctly assessed LMT’s testimony using the applicable criteria for adult witnesses, but also discussed the fact that the evidence pertained to events that occurred 40 years prior.

In his decision, the trial judge says: […] Inconsistencies with, for example, date or time, day or night, precise age, or clothes that were worn, or what rooms the assaults may have occurred in, or whether the accused was sober or stoned, are not unexpected in cases of this type – particularly where the allegations are being told to the trier forty years after the event.

Such inconsistencies in cases of this type, in my view, do not necessarily go to the credibility or reliability of a witness on the core allegations. [para. 120] [ 59 ] In so doing, the trial judge correctly navigated the issues of credibility and did not create a credibility contest, which is to be avoided. The principle of presumption of innocence was not lost on the trial judge, as he repeatedly acknowledged the duty to protect the accused’s rights. In credibility cases, deference to the trial judge is typically in order, making appellate intervention a rare occurrence.

It would take a significant error to justify the remedies sought by Mr. Dedam. In my opinion, the trial judge did not err. [ 60 ] In his decision, the trial judge succinctly referenced the value of being a judge of first instance: “[…] the benefit of having heard the witness testify to the origin of the behaviour underlying the counts, satisfies me that I can accept part of her evidence – in this situation the critical parts – without finding that the inconsistencies undermine the essential facts of the count.” [ 61 ] Mr. Dedam submits the reasons provided were not “meaningful” enough.

However, there is no need to be comprehensive in this respect. The judge is not “required to reconcile every frailty in the evidence, refer to all the conflicting evidence, and set out every finding made in reaching a verdict” ( R. v. Ali , 2015 BCCA 333 , [2015] B.C.J. No. 1539 (QL), at para. 13 ). The trial judge acknowledged the unique difficulties faced by victims of sexual abuse, especially when recalling their trauma over 40 years later.

He acknowledged that LMT struggled with details differing from her direct examination, versus what she said to the police, but “[n]evertheless, […] accepted that there are dynamics unique to offences of this nature that, in the proper circumstances, can result in an understandable degree of incongruity in the evidence presented.” There is an intelligible basis for the verdict, and the conviction does not warrant judicial intervention. [ 62 ] In R. v.

R.E.M. , 2008 SCC 51 , [2008] 3 S.C.R. 3, the facts of which are strikingly similar to those of this case, the trial turned on the credibility of a witness testifying to 11 incidents of sexual assault that occurred over a period of years when the victim was a child. The trial judge accepted most of the evidence but rejected portions that were contradictory. As the Supreme Court noted, the trial judge stated in his reasons that, because the “complainant was a child at the time of most of the incidents and because they had happened a long time before […] some errors in her evidence were understandable” (para. 59).

The Court restored the guilty verdicts and made clear “the trial judge’s alleged failure to reconcile his generally positive findings on the complainant’s evidence with the rejection of some of her evidence did not render the reasons deficient” (para. 65). As juries are routinely instructed, it is open to the trier of fact to accept some of the evidence of a witness, while rejecting other evidence of the same witness. There is no reason to depart from this precedent. Reasons are deemed to be sufficient if they are “responsive to the case’s live issues and the parties’ key arguments” ( R. v.

Walker , 2008 SCC 34 , [2008] 2 S.C.R. 245, at para 20 ). In R.E.M. , the Supreme Court wrote trial judges need not provide “watch me think” reasoning (para. 17). [ 63 ] In this case, the trial judge was alive to the issue of credibility, which is typically at issue during sexual assault cases. The trial judge’s reasons make clear that he carefully and appropriately considered LMT’s evidence and the consequences of her inconsistencies. In doing so, he satisfied himself that the core of LMT’s evidence established Mr. Dedam’s guilt beyond a reasonable doubt for counts one to three.

A decision is deemed to be sufficient if, when read in context, it shows how the judge came to his or her decision ( R.E.M. , at para. 17 ). That is the core of the issue. At the appellate level, a court must take a functional and contextual approach to determine if reasons are insufficient (see R. v. Vuradin , 2013 SCC 38 , [2013] 2 S.C.R. 639 , at para. 10 ; G.F. , at para. 69 ). Prior to Vuradin , the Supreme Court endorsed a similar approach: “the appeal court must defer to the conclusions of the trial judge unless a palpable or overriding error can be shown” ( R. v.

Gagnon , 2006 SCC 17 , [2006] 1 S.C.R. 621, at para. 10 ). [ 64 ] The importance of giving reasons cannot be understated. Decisions should satisfy three primary points: (1) explain the decision to the parties; (2) provide public accountability; and (3) permit effective appellate review (see R. v. Oddleifson (J.N.) , 2010 MBCA 44 , [2010] M.J. No. 170 (QL), at para. 30 ). It is widely accepted that trial judges are not required to explain every single step of their thinking.

Reasons are measured on a standard of adequacy, not perfection. [ 65 ] Finding an error of law due to insufficient reasons requires two stages of analysis. The first is whether the

reasons are inadequate and, if so, whether they are so insufficient they prevent meaningful appellate review. In R. v. Sheppard, 2002SCC 26, [2002] 1 S.C.R. 869, the Supreme Court identified several inquiries, including the following, which can be undertaken to guidean appellate court’s analysis: 1. Are there significant inconsistencies or conflicts in the evidence which are not addressed in the reasons for judgment? 2. Was the confused and contradictory evidence related to a key issue on the appeal? 3.

Does the record not otherwise explain the trial judge’s decision in a satisfactory manner? [66] In examining each of these in turn, I conclude the trial judge was correct in his initial assumptions. Firstly, thetrial judge turned his mind to two significant inconsistencies in the evidence and specifically addressed them in his decision (at paras.116-128).

Secondly, the contradictory evidence does not relate to a key issue on appeal, because those counts are not under appeal.Finally, the record clearly explains how the trial judge arrived at his conclusion, in a satisfactory matter, which is obvious upon firstreading. For these reasons, this Court should be wary of entertaining these grounds of appeal. [67] In R. v. Burke, (CSC), [1996] 1 S.C.R. 474, [1996] S.C.J.

No. 27 (QL), the Supreme Courtwarned “it is only where the Court has considered all of the evidence before the trier of fact and determined that a conviction cannot bereasonably supported by that evidence that the court can […] overturn the trial court’s verdict” (para. 4). Basis for appellate interventionarises where “the path taken by the trial judge […] is not at all apparent, or there are difficult issues of law that need to be confronted butwhich the trial judge has circumvented without explanation” (Sheppard, at para. 46). That is not the situation in this case.

In fact, the trialjudge acknowledged the inherent difficulties when child victims of sexual assault testify years later, and he confronted them head on.The Supreme Court in R. v. Dinardo, 2008 SCC 24, 1 S.C.R. 788, made clear that the reasons show the judge has seized the substance ofthe issue. [68] In R.E.M., the Court clarified that “[t]he degree of detail required in explaining findings on credibility may […]vary with the evidentiary record and the dynamic of the trial” (para. 51).

The Court goes on to say: “The trial judge should not be foundto have erred in law for failing to describe every consideration leading to a finding of credibility, or to the conclusion of guilt orinnocence” (para. 56). Regarding appellate intervention, the Court emphasized that “[r]arely will the deficiencies in the trial judge’scredibility analysis, as expressed in the reasons for judgment, merit intervention on appeal” (Dinardo, at para. 26). Reasons must be bothinadequate and inscrutable to warrant a new trial.

This is not the case here. [69] In my view, the decision is more than clear enough to permit meaningful appellate review. The threshold isvery low for this stage of the analysis. [70] Finally, and although not pertinent to the present case, it is worth noting that, even if the trial decision isdeficient in explaining the result to the parties, this does not always constitute a fatal error. Where an appellate court “considers itselfable to do so, the appeal court’s explanation in its own reasons is sufficient,” and there is no need for a new trial (Sheppard, at para. 55). [71] Mr.

Dedam submits the trial judge provided a boilerplate dismissal of the inconsistencies in LMT’s evidence. Idisagree. The trial judge considered each inconsistency and dealt with it properly. He explained why he determined that some of theinconsistencies had no significant impact on LMT’s credibility, including the fact that the sexual assaults had occurred over forty yearsearlier when LMT was a child. This Court will not reweigh the inconsistencies contained in the record. That is not our role (see Nowlan-Ward v. R., 2020 NBCA 41, [2020] N.B.J. No. 133 (QL)). I would dismiss this ground of appeal. B.

Did the trial judge properly apply the W.(D.) framework in his assessment of Mr. Dedam’s “exculpatory” out-of-court statementsto witness Barbara Martin? [72] In cross-examination, counsel for Mr. Dedam extracted from Crown witness Barbara Martin the fact that,around the time of the offences, Mr. Dedam said to her that he did not sexually assault any of the victims. He now argues that thisevidence was not properly filtered through the W.(D.) framework.

[73] In assessing the merits of this ground of appeal, it must be remembered that the W.(D.) steps “need not bereligiously followed or articulated,” and “[t]he key is whether the correct burden and standard of proof were applied, not what wordswere used in applying them” (see R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para 7; Dinardo, at para 23; Brown v. R., 2021 NBCA40, [2021] N.B.J. No. 222 (QL), at para 21). [74] Mr. Dedam submits the trial judge incorrectly applied the W.(D.) framework in assessing the exculpatory out-of-court statements.

It is necessary to apply W.(D.) where credibility is a central or significant issue and there is no other extrinsicevidence. Any error in applying the test must be reviewed as a question of law on a standard of correctness. [75] The trial judge reviewed W.(D.) at length in his reasons.

Although reformulated several times since itsinception, the trial judge expressed the three steps as follows: first, if you believe the evidence of the accused, obviously you mustacquit; second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit; and third,even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which youdo accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [76] In R. v. Lakes, 2005 NSCA 162, [2005] N.S.J.

No. 506 (QL), the court said that “[a]n implied answer to one ofW.(D.)’s questions is clearly acceptable” (para. 17). The test need not be referred to explicitly in order to satisfy the sufficiency ofreasons but, in this case, the trial judge made specific reference to the framework and relevant legal principles related to it. [77] Mr. Dedam did not testify in this trial, hence the defence’s attempt to rely on Crown witness Ms. Martin.During her testimony, potential exculpatory statements came to light.

Although the defence wished to rely on the statements, the trialjudge clearly established that he did not believe this evidence: “I will be frank and say that [the evidence] causes me difficulty in relyingon Mr. Dedam’s assertion of innocence” (trial decision, at para 67). This finding resulted in the attribution of little weight to thetestimony, as was the trial judge’s prerogative. The first step of this framework was met.

The trial judge did not believe the evidence. [78] Second, according to W.(D.), if a trial judge does not believe the testimony of the accused but is left inreasonable doubt by it, he or she must acquit. Although the first step revealed the trial judge did not believe, and therefore would not relyon, the out-of-court statement, he was required to consider the next step. The second step hinges on whether or not the judge believed,beyond a reasonable doubt, that the accused was guilty.

Great deference is afforded to judges of first instance because they are in theunique position to hear the evidence and determine credibility. The trial judge made clear he believed the bulk of LMT’s testimony and,as a result, found Mr. Dedam guilty. A common pitfall at this step of the analysis is taking a binary view of the credibility analysis,which can result in an error of law. The trial judge did not fall into this trap. It is clear, throughout the decision, the evidence acceptedfrom the witnesses was sufficient to prove Mr.

Dedam’s guilt beyond a reasonable doubt. [79] Third, even if a judge is not left in doubt by the evidence of the accused, he or she must ask whether, on thebasis of the accepted evidence, he or she is convinced beyond a reasonable doubt of the guilt of the accused. The third step, as the trialjudge put it, “calls upon the trier of fact to give the accused the benefit of all reasonable doubt even if the trier does not believe theexculpatory evidence.” The Supreme Court has long pointed out that the W.(D.) framework is not meant to be followed “word for wordas some magic incantation” (R. v.

S. (W.D.), (CSC), [1994] 3 S.C.R. 521, [1994] S.C.J. No. 91 (QL), at p. 533). In myview, the trial judge’s decision not to weigh the exculpatory statement is correct. In R. v. Cote, 2016 ABCA 387, [2016] A.J. No. 1264(QL), the Court of Appeal of Alberta made clear that, just because a judge does not specifically address every issue, it does not mean heor she failed to consider other reasons or did not exercise discretion judiciously (at para. 13).

It is well-settled law that, where the verdictturns on the accused’s credibility, the trial judge’s reasons should disclose whether or not he or she believed the accused (Lake, at para.14). Although Mr. Dedam did not testify, the trial judge is unequivocal when he says he believes LMT was routinely assaulted in regardsto counts one, two and three. The trial judge stated there is “no reasonable doubt that, during the period of time identified in count 1, Mr.Dedam committed the offence set out therein.” [80] Overall, the trial judge’s reasons are clear that he completely rejected Mr.

Dedam’s “exculpatory” statements.The trial judge explained how he dismissed the statements at steps one and two of his W.(D.) analysis. [81] The trial judge assessed the words Mr. Dedam is said to have uttered to Ms. Martin in a contextual mannerplaced in the context of when and where they were said. Having done so, he concluded that there was “little exculpatory in the wordsattributed to Mr. Dedam by Ms. Martin, in the circumstances in which they were reportedly said.” The trial judge went on to explain thatMr. Dedam’s denials “are of no value to him.” [82] Mr.

Dedam concedes on appeal that the trial judge clearly rejected this exculpatory evidence at the first step of

W.(D.). Nonetheless, he maintains the trial judge failed to properly assess the evidence at the second step. This argument fundamentallyoverlooks the fact that, at law, a complete rejection of an accused’s exculpatory evidence safely and conclusively implies that theevidence similarly did not leave the trial judge with a reasonable doubt. In other words, a complete judicial rejection of the accused’sevidence addresses both the first and second steps of W.(D.). [83] Recall that a functional and contextual review of the trial judge’s reasons is required. With that in mind, byrejecting Mr.

Dedam’s denials and labelling them as being of “no value” as well as carrying “little exculpatory” weight, the trial judgewas decidedly not left with any doubt from the denials at the second step of W.(D.). On this very point, this Court recently stated in M.L.v. R., 2021 NBCA 27, [2021] N.B.J. No. 137 (QL) (citing R.E.M., at para 56): […] Reasonable inferences need not be spelled out.

For example if, in a case that turns on credibility, a trial judge explains that he or shehas rejected the accused’s evidence, but fails to state that he or she has a reasonable doubt, this does not constitute an error of law; in sucha case the conviction itself raises an inference that the accused’s evidence failed to raise a reasonable doubt. […] [para. 32] [84] Counsel for the Crown submits Mr. Dedam was not entitled to a W.(D.) analysis regarding these statements inthe first place. The argument raised by Mr. Dedam at trial was that Ms.

Martin’s evidence regarding his denials required the trial judge toconduct a W.(D.) analysis. The argument was based on the principle of law set out by Richard J.A. that any exculpatory evidenceinjected into the evidentiary record, whether it be introduced by the Crown or the accused, should be subjected to the reasonable doubtstandard and is thus deserving of a W.(D.) analysis (R.S.L. v. R., 2006 NBCA 64, 300 N.B.R. (2d) 24, at para. 100). As Larlee J.A.explained in Morningstar v. R., 2017 NBCA 39, [2017] N.B.J. No. 230 (QL) (citing R. v B.D., 2011 ONCA 51, [2011] O.J.

No. 198(QL), at para 105): […] the W.(D.) requirement extends beyond cases where the accused testifies to those where the accused does not but there is otherdefence evidence called contradicting the Crown’s case and/or conflicting evidence favourable to the defence in the Crown’s case (forexample, an exculpatory remark in a statement put in by the Crown) […] [para. 6] [85] This statement of the law is correct, and the Crown does not contest this principle of law in its written brief.The issue, however, according to the Crown, is that this principle was not triggered in this case. [86] At trial, the Crown did not introduce the evidence of Mr.

Dedam’s statement to Ms. Martin for the truth of itscontents (as an exception to the hearsay rule). While there is no doubt that the Crown is permitted to adduce an accused’s out-of-courtstatement for the truth of its contents, the Crown says that is not what took place in this instance. It submits Ms. Martin’s evidence of Mr.Dedam’s statement to her was narrative and state of mind evidence which assisted in explaining why she went to the Dedam residence tospeak to the children (i.e., she had to explain what Mr.

Dedam had said to her in order for the trier of fact to understand why she went tothe Dedam house in the first place). I agree with the Crown that this is an example of narrative and state of mind evidence. It is to bedistinguished from the scenario wherein the Crown introduces, for example, the cautioned statement of an accused into evidence for thetruth of its contents, and the statement contains within it exculpatory remarks uttered by the accused. [87] In this case, Ms. Martin’s direct evidence was not tendered to be relied upon for the truth of Mr. Dedam’sstatement to her. Nonetheless, Mr.

Dedam was entitled to add context to this narrative evidence and adduce further words utteredrespecting his denials. Adducing this in cross-examination was only admissible for the limited purpose of completing the contextualpicture – it provided the trial judge with a more thorough understanding of the narrative. That said, given the specific context in whichthe exculpatory denials were adduced, they were not admissible for the truth of their contents.

Where the Crown has introduced state ofmind and narrative evidence for a non-hearsay purpose, and the evidence is neither inculpatory nor exculpatory, the accused is notentitled to transform that evidence into exculpatory evidence to be relied upon for the truth of its contents. An accused is not entitled toadduce his or her prior hearsay statements into evidence for the truth of their contents where the Crown has not triggered the “mixedstatement” exception set out by the Supreme Court in R. v.

Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111: Exculpatory out-of-court statements made by an accused are also subject to the general exclusionary rule against hearsay. Where theaccused testifies, such statements are generally inadmissible because they are viewed as self-serving and lacking in probative value.Where the accused does not testify, there is an additional rationale for excluding such statements.

McIntyre J. explained it in R. v.Simpson, (CSC), [1988] 1 S.C.R. 3, as follows (at p. 22): As a general rule, the statements of an accused person made outside court – subject to a finding of voluntariness where the statement ismade to one in authority – are receivable in evidence against him but not for him. This rule is based on the sound proposition that anaccused person should not be free to make an unsworn statement and compel its admission into evidence through other witnesses and

thus put his defence before the jury without being put on oath and being subjected, as well, to cross-examination. Of course, the general rule that excludes out-of-court exculpatory statements is not without exceptions. One such exception is relevanthere – the mixed statement exception. Just as in England, it has long been established that where the Crown seeks to tender an accused'sout-of-court statement which contains both inculpatory and exculpatory parts, it must tender the entire statement, and the exculpatoryportions are substantively admissible in favour of the accused: R. v.

Hughes, (SCC), [1942] S.C.R. 517, at p. 521.Fairness to the accused is the obvious rationale for the mixed statement exception. The exception is also based on the more pragmaticconsideration that it is often difficult to determine which parts of a statement are inculpatory and which parts are exculpatory. [paras. 36-37] [88] Importantly, the “mixed statements” exception did not apply in this case. The evidence adduced by the Crownfrom Ms. Martin was not inculpatory, nor was it exculpatory. Furthermore, it was not tendered for the truth of its contents.

It merelyexplained why she went to the Dedam residence to speak to the children. Counsel for Mr. Dedam then permissibly extracted from Ms.Martin a more complete picture of his statements.

However, the trial judge was not permitted to rely on this evidence for the truth of itscontents in order to conduct a W.(D.) analysis. [89] In its written submission, the Crown outlined an important distinction in the law: where the Crown introducesany evidence, including a statement of the accused for the truth of its contents as an exception to the hearsay rule, and that evidencecontains both inculpatory and exculpatory portions, there is no doubt that the principle set out by Richard J.A. in R. v.

R.S.L. applies, anda W.(D.) analysis is required (this commonly occurs where the Crown introduces into evidence the cautioned statement of an accused forthe truth of its contents and that statement contains both inculpatory and exculpatory portions).

R.S.L. applies to any exculpatory evidencecalled by the accused as well. [90] However, where the Crown has introduced state of mind and narrative evidence for a non-hearsay purpose, andthat evidence is neither inculpatory nor exculpatory, the accused is not entitled to transform that evidence into exculpatory evidence to berelied upon for the truth of its contents in order to support a request for a W.(D.) analysis. As the Supreme Court has explained, anaccused is not entitled to extract his own exculpatory out-of-court statement from another witness and then seek an acquittal on thatbasis. Ms.

Martin’s evidence created the exact scenario the Supreme Court has prohibited. Indeed, as the Court acknowledged, it isespecially problematic for an accused to do so where he is not willing to later testify and subject himself to cross-examination whileunder oath. [91] I would dismiss this ground of appeal. C. Is the conviction on count six the product of an unreasonable verdict? [92] Mr. Dedam submits the guilty verdict on count six was unreasonable and not one “that a properly instructedjury acting judicially, could reasonably have rendered” (R. v. Yebes, (CSC), [1987] 2 S.C.R. 168, [1987] S.C.J.

No. 51(QL), at p. 185, quoting Corbett v. R., (CSC), [1975] 2 S.C.R. 275, at p. 282, per Pigeon J.) In R. v. Biniaris, 2000 SCC15, [2000] 1 S.C.R. 381, the Supreme Court expanded this definition and clarified that this standard also applies to judges sitting withouta jury (at para. 37).

Additionally, appellate courts can determine a verdict was unreasonable if “the trial judge has drawn an inference ormade a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of thatinference or finding; or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trialjudge” (R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9). The “burden” on the appellant in establishing an unreasonable verdicthas been described as “high” and “difficult” (Oland v. R., 2016 NBCA 58, [2016] N.B.J.

No. 230 (QL), at para. 27. See also Kerfont v.R., 2020 NBCA 51, [2020] N.B.J. No. 170 (QL)). [93] Mr. Dedam asserts the unreasonable verdict was a result of the trial judge’s credibility assessment. As statedabove, in these cases, “the court of appeal must bear in mind the advantageous position of a trial judge in assessing the credibility ofwitnesses and the accused” (R. v. Burke, (CSC), [1996] 1 S.C.R. 474, [1996] S.C.J. No. 27 (QL), at para 5).Additionally, “this is a power which an appellate court will exercise sparingly” (Burke, at para. 6). In

summary, we can only interferewith a credibility assessment if it cannot be supported by any reasonable view of the evidence (Burke, at para. 6). See also Kerfont, atpara. 26.

[94] Recently in R. v. C.P., 2021 SCC 19, [2021] S.C.J. No. 19 (QL), the Supreme Court reiterated the unreasonableverdict standard on appeal where a trial judge is sitting alone and convicts the accused. There are two ways an appeal court may find averdict unreasonable: When a verdict is reached by a judge sitting alone and explained in reasons for judgment, there are two bases on which a court of appealmay find the verdict unreasonable. First, a verdict is unreasonable if it is not one that a “properly instructed jury acting judicially, couldreasonably have rendered” (R. v.

Biniaris, 2000 CSC 15 , [2000] 1 S.C.R. 381, at para. 36, quoting R. v. Yebes, (CSC), [1987] 2 S.C.R. 168, at p. 185). In Biniaris, Arbour J. clarified that this standard, despite being expressed in terms of a verdictreached by a jury, also applies to the decisions of a judge sitting without a jury.

She explained, however, that review forunreasonableness on appeal is “somewhat easier when the judgment under attack is that of a single judge”, since judges give reasonswhereby the reviewing appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explainthe unreasonable conclusion reached, and justify the reversal. [para. 37] Arbour J.’s comments in Biniaris led to the adoption, in R. v. Beaudry, 2007 CSC 5 , [2007] 1 S.C.R. 190, and R. v.

Sinclair,2011 CSC 40 , [2011] 3 S.C.R. 3, of a narrowly expanded, second avenue of review for unreasonableness. A verdict reached bya judge may be unreasonable, even if supported by the evidence, if it is reached “illogically or irrationally” (Beaudry, at paras. 96-97, perFish J. (dissenting in the result); Sinclair, at paras. 4 and 15-17, per Fish J. (dissenting in the result), and at para. 44, per LeBel J.).

Thismay occur if the trial judge draws an inference or makes a finding of fact essential to the verdict that is plainly contradicted by theevidence relied on by the judge in support of that inference or finding, or shown to be incompatible with evidence that has neither beencontradicted by other evidence nor rejected by the trial judge (Sinclair, at paras. 4, 16 and 19-21; R. v. R.P., 2012 CSC 22 ,[2012] 1 S.C.R. 746, at para. 9).

The Beaudry and Sinclair inquiry into illogical or irrational findings or inferences is not an invitation for reviewing judges to substitutetheir preferred findings of fact for those made by the trial judge (Beaudry, at para. 98). As MacPherson J.A. noted in the Court ofAppeal, the “fact that an appeal court judge would have had a doubt when the trial judge did not is insufficient to justify the conclusionthat the trial judgment was unreasonable” (para. 67, quoting R. v. A.G., 2000 CSC 17 , [2000] 1 S.C.R. 439, at para. 29).

Nor isit an invitation to unjustifiably interfere with a trial judge’s credibility assessments. A court of appeal reviewing credibility assessmentsin order to determine whether the verdict is reasonable cannot interfere with those assessments unless they cannot be supported on anyreasonable view of the evidence (R.P., at para. 10; R. v. Burke, (CSC), [1996] 1 S.C.R. 474, at para. 7).

The inquiryinto the logic or rationality of a judge’s essential findings under Beaudry and Sinclair is narrowly targeted at “fundamental flaws in thereasoning process” which means that the verdict was not reached judicially or in accordance with the rule of law (Sinclair, at paras. 4, 26and 77). [paras. 28-30] [95] The trial judge addressed the proposition from defence counsel that GKT misinterpreted Mr. Dedam’s wordsas she was not familiar with being loved.

In his opinion, this characterization was not credible and was not supported by the evidence.The trial judge found that, although “the specifics of the circumstances may fade with time and collateral facts may get confused orforgotten,” this did not detract from the “crux of the allegation” (para. 166). The trial judge was entitled to conclude that GKT did notmisunderstand Mr. Dedam’s sexual advances. The trial judge disagreed with Mr. Dedam’s claim that GKT’s evidence was unreliable.His finding on this issue is owed deference. [96] In my view, the verdict was one a judge could reasonably render.

This finding was not contradicted by orincompatible with the evidence. Mr. Dedam bore the burden of establishing unreasonableness, and he did not discharge that burden. Thetrial judge had the opportunity to hear and weigh the evidence firsthand. He gave extensive reasons for his decision and thoroughlyevaluated any issues that arose with the evidence of the various witnesses. [97] The trial judge believed the complainant. The credibility assessment can be supported by a reasonable view ofthe evidence. This ground is without merit. D. Is the sentence demonstrably unfit? [98] If Mr.

Dedam’s conviction appeals are dismissed, he asks that his sentence be decreased from 10 years to fiveyears. In support of this request, he makes three claims:

i) the trial judge erred in law by imposing a sentence which exceeded the sentence received after Mr. Dedam’s first trial, thus failingto give effect to the decreased number of convictions following his second trial; ii) the trial judge failed to properly consider and apply the relevant principles articulated in R. v. Gladue, (CSC),[1999] 1 S.C.R. 688, [1999] S.C.J. No. 19 (QL); and iii) the trial judge imposed a sentence that is demonstrably unfit. [99] As a preliminary matter, leave to appeal is required where an appellant seeks to appeal a sentence passed bythe trial court.

As it relates to the applicable standard of review, the window for appellate intervention on sentence appeals is narrow.This Court may only intervene where:

i) the sentence is clearly unreasonable; or ii) the sentencing judge committed an error in principle (which includes an error of law, failure to consider a relevant factor, orerroneously considering an aggravating or mitigating factor), and such an error had an impact on the sentence. [100] For his four convictions in 2021, Mr. Dedam received a global custodial sentence of 10 years. In 2016, however,following his six convictions (which were set aside on appeal), he received a global sentence of nine years. Therefore, although hisconvictions decreased, his sentence increased.

As a result, he claims the trial judge committed a legal error because “a reasonableobserver” would have difficulty understanding how Mr. Dedam’s sentence could increase despite the reduction in convictions. [101] The trial judge’s upward departure from the sentence imposed following Mr. Dedam’s first trial wasundoubtedly in response to R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100 (QL). The Crown acknowledges the absence of “newevidence” of aggravating facts as contemplated by this Court in Doiron v.

R., 2007 NBCA 41, 315 N.B.R. (2d) 205, as a reason to justifyan increased sentence after a second trial. [102] I will first address Mr. Dedam’s submission that the trial judge failed to properly consider the relevant Gladueprinciples. According to Friesen, the moral blameworthiness of the offender is deemed to increase “when offenders intentionally targetchildren who are particularly vulnerable, including children who belong to groups that face discrimination or marginalization in society”(para. 90). Nevertheless, sentencing judges must apply the Gladue principles and the principles enunciated in R. v.

Ipeelee, 2012 SCC 13,[2012] 1 S.C.R. 433, if the accused is Indigenous. [103] Mr. Dedam claims the trial judge did not consider his experience as a First Nations individual as a mitigatingfactor or in assessing his moral blameworthiness. On this point, there is no doubt the trial judge had a positive obligation to consider Mr.Dedam’s status as an Indigenous offender. A failure to do so is an error of law.

In keeping with this principle, in Friesen, the SupremeCourt has stressed that Gladue considerations remain relevant even in the context of severe child sexual abuse offences. [104] Bearing the above in mind, the trial judge spent a considerable portion of his sentencing decision outlining theGladue considerations applicable in this case. His reasons reveal that he was alive to his obligation to consider Gladue. To that end, itmust be made clear: the trial judge had an obligation to consider Mr. Dedam’s status as an Indigenous offender, but he was not requiredto conclude that Mr.

Dedam was automatically entitled to a finding of mitigation. As explained in Friesen, “[t]he systemic andbackground factors that have played a role in bringing the Indigenous person before the court may have a mitigating effect on moralblameworthiness” (para. 92).

The Court went on to explain that the weight to apply to mitigating factors such as Gladue principles arewithin the trial judge’s sentencing discretion: […] However, while s. 718.01 requires that deterrence and denunciation have priority, nonetheless, the sentencing judge retainsdiscretion to accord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving ata fit sentence, in accordance with the overall principle of proportionality. […] [para. 104]

Therefore, I find no error of law in how the trial judge weighed the Gladue factors in determining a fit sentence for Mr. Dedam. [105] I will now turn to Mr. Dedam’s submission that the trial judge erred in law by imposing a sentence that exceededthat received after his first trial. In Doiron, this Court stated: The respondent properly concedes that the rule set out by the Québec Court of Appeal in R. v. Valère, [1996] J.Q. No. 1365 (QL), andreiterated in R. v. Daoulov, [2002] J.Q.

No. 1203 (QL), at para. 4, postulates that the imposition of a more severe sentence at a secondtrial can only be justified on the basis of new evidence of aggravating facts, or on a finding that the first sentence was clearlyunreasonable (see also R. v. Eng, [2000] B.C.J. No. 295 (QL), paras. 5-6 (B.C.C.A.), 2000 BCCA 31). [para. 152] [106] In Doiron, the Court found the trial judge made a palpable and overriding error when he concluded Mr. Doironwas a “simple messenger” in the drug trade in the Moncton region.

As a result of this error, the Court determined the sentence imposedby the trial judge was clearly unreasonable and this therefore allowed the judge in a subsequent trial to increase Mr. Doiron’s sentence. [107] Mr. Dedam is correct in his submissions respecting his sentence. The trial judge erred in principle in giving Mr.Dedam a 10-year sentence when there was no new evidence of aggravating facts or a finding that the first sentence was clearlyunreasonable. Therefore, there was no justification for the longer sentence imposed by the trial judge. In R. v.

Lacasse, 2015 SCC 64,[2015] 3 S.C.R. 1089, the Supreme Court wrote: In my view, an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigatingfactor will justify appellate intervention only where it appears from the trial judge’s decision that such an error had an impact on thesentence. [para. 44] [108] Although the trial judge considered and applied the Gladue principles and the mitigating and aggravating factorsdictated by s. 718.2 of the Criminal Code, he did err in increasing the sentence from that given after the first trial.

I would therefore grantleave to appeal sentence. As stated earlier, Mr. Dedam requested, if his conviction appeals are dismissed, that his sentence be decreasedfrom 10 years to five years. I agree that the sentencing judge erred in principle when he increased the sentence. Mr. Dedam argues thatanything other than a five-year sentence is demonstrably unfit. This Court has stated previously that attempting to establish that asentence is unreasonable or demonstrably unfit is a very high standard to meet. [109] In St. Pierre v. R., 2021 NBCA 48, [2021] N.B.J.

No. 283 (QL), the Court wrote: There is no basis to conclude that the sentence imposed on Mr. St. Pierre is demonstrably unfit. In light of the level of deference owed tojudges in sentencing appeals, the standard for establishing that a sentence is demonstrably unfit is “very high” (emphasis added, R. v.Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 52). That threshold has not been met in this case. Although lengthy, the sentenceimposed is fair, reasonable and necessary.

There is no basis to interfere with the trial judge's sentence. [para. 8] [110] In Lacasse, the Supreme Court also stated: It is possible for a sentence to be demonstrably unfit even if the judge has made no error in imposing it. As Laskin J.A. mentioned,writing for the Ontario Court of Appeal, the courts have used a variety of expressions to describe a sentence that is “demonstrably unfit”:“clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, or representing a “substantial and markeddeparture” (R. v. Rezaie (1996), (ON CA), 31 O.R. (3d) 713 (C.A.), at p. 720).

All these expressions reflect the veryhigh threshold that applies to appellate courts when determining whether they should intervene after reviewing the fitness of a sentence. This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, which provides thata sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. A sentence willtherefore be demonstrably unfit if it constitutes an unreasonable departure from this principle.

Proportionality is determined both on anindividual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison withsentences imposed for sim

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