2022 NBCA 62, 2022 NBCA 62

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 76-21-CA RANDY BOURGEOIS APPELLANT RANDY BOURGEOIS APPELANT - and - - et - HIS MAJESTY THE KING RESPONDENT SA MAJESTÉ LE ROI INTIMÉ Bourgeois v. R., 2022 NBCA 62 CORAM: The Honourable Justice Quigg The Honourable Justice French The Honourable Justice LeBlond Bourgeois c.

R., 2022 NBCA 62 CORAM : l’honorable juge Quigg l’honorable juge French l’honorable juge LeBlond Appeal from a decision of the Court of King’s Bench: April 22, 2021 (conviction) June 25, 2021 (sentencing) Appel d’une décision de la Cour du Banc du Roi : le 22 avril 2021 (déclaration de culpabilité) le 25 juin 2021 (détermination de la peine) History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: None Procédures préliminaires ou accessoires : aucune Appeal heard: March 31, 2022 Appel entendu : le 31 mars 2022 Judgment rendered: November 3, 2022 Jugement rendu : le 3 novembre 2022

Reasons for judgment: The Honourable Justice French Concurred in by: The Honourable Justice Quigg The Honourable Justice LeBlond Counsel at hearing: Randy Bourgeois on his own behalf For the respondent: Patrick McGuinty and Joanne Park Motifs de jugement : l’honorable juge French Souscrivent aux motifs : l’honorable juge Quigg l’honorable juge LeBlond Avocats à l’audience : Randy Bourgeois en son propre nom Pour l’intimé : Patrick McGuinty et Joanne Park THE COURT The appeal and the application for leave to appeal sentence are dismissed.

LA COUR L’appel et la demande d’autorisation d’appel de la peine sont rejetés. The judgment of the Court was delivered by FRENCH, J.A. I. Introduction [ 1 ] Randy Bourgeois was found guilty of several criminal offences for firing a handgun from a vehicle. A central issue at trial was the testimony of three individuals, who all said Mr. Bourgeois was holding a gun out the vehicle’s front passenger window, which conflicted with the testimony of Mr. Bourgeois, who said he had an alibi and was not in the vehicle when the shooting occurred.

The trial judge rejected the alibi evidence and was satisfied beyond a reasonable doubt that, as the vehicle passed by two of the witnesses, James Brown and Austin Sherwood, Mr. Bourgeois fired a single shot after a heated verbal exchange among them. [ 2 ] Mr.

Bourgeois appeals against conviction, contending: (1) the trial judge erred by rejecting his alibi evidence since it was clear the police failed to investigate or obtain evidence that would have proved his alibi; (2) the trial resulted in a miscarriage of justice because his legal counsel was not competent; and (3) the trial judge failed to declare a mistrial despite being advised (by Mr.

Bourgeois after he had been found guilty, but prior to his sentencing) that the Crown prosecutor at trial had previously both represented him and worked at the same law firm as his defence counsel (which was raised for the first time on appeal). [ 3 ] Mr. Bourgeois also seeks leave to appeal the seven-and-a-half-year sentence (less time served on remand) imposed by the trial judge. [ 4 ] For the reasons that follow, I would dismiss the appeal against conviction and the application for leave to appeal sentence.

II. Background [ 5 ] The shooting occurred at approximately 4:56 p.m. on June 24, 2020, as the vehicle passed by the entrance to Mr. Brown’s apartment. The apartment is on the ground floor of a building located at the corner of Ludlow Street and Guilford Street West in Saint John. The entrance is on Guilford Street. The shot was fired as the vehicle was turning right, off Guilford Street and onto Ludlow Street. [ 6 ] Mr. Brown’s girlfriend, Dominique Chevarie, also lived in the apartment and was present at the time of the shooting, as was Mr. Brown’s five-year-old son, who was visiting them for the afternoon. Mr.

Sherwood was also present, having arrived shortly before the shooting occurred. [ 7 ] While Mr. Bourgeois challenges the trial judge’s rejection of his alibi evidence and the judge’s finding that it was him who had fired the gun, the other facts found by the judge regarding the circumstances of the shooting are not challenged on appeal. [ 8 ] Before summarizing the events, I would highlight two points. First, this is not a case where the offender was identified by strangers. Mr. Brown, Ms. Chevarie and Mr. Sherwood all know Mr. Bourgeois.

Similarly, they all know Jason Arbeau, who was identified as the driver of the vehicle. [ 9 ] Second, a surveillance camera captured Mr. Arbeau’s vehicle drive up Guilford Street West, toward Ludlow Street, and pass by the entrance to Mr. Brown and Ms. Chevarie’s apartment twice, at 4:37 p.m. and again at 4:56 p.m. As will be explained, the judge found the surveillance recording supported the Crown’s evidence and was inconsistent with Mr. Bourgeois’ testimony since it did not show the vehicle going back down Guilford Street, as Mr. Bourgeois testified was the case.

Located in a window of the apartment, the camera was directed at the building’s parking area, and it looked out toward Guilford Street. The portion of the recording in evidence included the period between 3:30 p.m. and the shooting at 4:56 p.m. [ 10 ] Both Mr. Brown and Mr. Sherwood testified that, the first time the vehicle came up Guilford Street, they saw Mr. Arbeau driving, with his girlfriend in the front passenger seat. They also saw Mr. Bourgeois, sitting in the back seat, with his tinted window rolled down by only about two to three inches; however, they made eye contact with him. In his testimony, Mr.

Bourgeois admitted he was in the back of Mr. Arbeau’s vehicle once as it drove up Guilford Street (toward Ludlow Street), and he saw Mr. Brown and Mr. Sherwood, but he stated he was not in the vehicle when the shot was allegedly fired. [ 11 ] Mr. Brown testified that, after the first drive by, he became concerned trouble might follow and he retrieved a baseball bat from Ms. Chevarie’s vehicle, which was parked in the yard beside the building. The recording shows him doing this about two minutes later, at 4:39 p.m. [ 12 ] Less than twenty minutes after the first drive by, Mr.

Sherwood stepped back outside the apartment and saw Mr. Arbeau’s vehicle parked at the bottom of the hill, facing up Guilford Street. He called for Mr. Brown to come out and watched as the vehicle pulled away from the curb and moved quickly up Guilford Street toward them. He testified he could see Mr. Bourgeois, who was, this time, in the front passenger seat and holding a gun out the window, while wearing a glove. Both Mr. Brown and Mr. Sherwood testified that they could see he was holding a revolver. [ 13 ] Mr. Brown and Mr.

Sherwood testified that, as the vehicle passed on this occasion, they exchanged words with Mr. Bourgeois. The commotion caused Ms. Chevarie to step out of her apartment; she testified that she witnessed Mr. Bourgeois in the front passenger seat of the vehicle, holding what she believed to be a gun out its window. She retreated into the apartment and took Mr. Brown’s son further back, into a bedroom, to keep him safe. She called the police. [ 14 ] Mr. Brown and Mr. Sherwood also testified that, as Mr. Arbeau’s vehicle turned the corner onto Ludlow Street, Mr.

Bourgeois fired a single shot, before the vehicle sped away. Mr. Sherwood said that, as he attempted to shield himself behind his parked car, he saw a spark and smoke when the gun was discharged. While another witness thought they might have heard two shots, Mr. Sherwood and Mr. Brown were certain there was only one. [ 15 ] Although the surveillance camera captured Mr. Arbeau’s vehicle driving up Guilford Street, the picture is not

clear enough to identify those in the vehicle; however, on the second occasion, the front passenger can be seen with an arm out the window and holding what the trial judge found appeared to be a gun. Since the recording did not capture the part of Guilford Street that directly faces the building, it did not record the exchange of words or the shooting. [ 16 ] Three other individuals who were in the area at the time of the shooting also testified at trial.

One was walking on Ludlow Street, toward Guilford Street, when she saw the vehicle, with the front passenger holding what she believed to be a gun out the window. Before the vehicle sped away, she heard a sound that caused her to believe the gun had been fired. The others testified regarding the vehicle speeding away on Ludlow Street, and/or the sound of possible gunfire. [ 17 ] Constable Janes was the first officer to arrive after the shooting, at about 5:03 p.m. From the beginning, the police understood Mr. Bourgeois was alleged to be the shooter. Mr. Brown testified that, while speaking with Cst.

Janes, he received a call on his cell phone from Mr. Bourgeois. Cst. Janes confirmed that he had witnessed the name “Randy Bourgeois” appear as “caller ID” on Mr. Brown’s phone. Minutes later, they watched what they believed to be Mr. Arbeau’s vehicle drive quickly past them on Ludlow Street. [ 18 ] Cst. Janes took the memory card from the surveillance camera in the apartment. He noticed a hole in the window panel (of another tenant) in the building, which was thought could have been caused by a bullet; however, this was not confirmed to have been caused by a bullet, and no bullet was ever located. [ 19 ] Mr.

Bourgeois and his residence on Waterloo Street were known to the police and, by 5:26 p.m., they arrived and kept his home under surveillance. Mr. Bourgeois was first seen coming out of his home at 5:42 p.m. He was not seen entering. Mr. Bourgeois argued this supported his alibi. [ 20 ] After 6 p.m., Mr. Bourgeois and his girlfriend left his residence and got into a vehicle with Mr. Arbeau and his girlfriend. Soon thereafter, the police stopped the vehicle and arrested Mr. Bourgeois and Mr.

Arbeau. [ 21 ] After receiving a tip from a confidential informant about a gun, the next day the police obtained a search warrant for a woman’s apartment on Castle Street, which is off Waterloo Street, minutes away from Mr. Bourgeois’ residence. They found a revolver hidden under a mattress; it held one spent shell casing and three unused cartridges/bullets. Mr. Bourgeois’ DNA was found on the casings, but not on the revolver. Also, it was impossible to determine whether his DNA was on one, more than one or all of the casings since a single swab was taken of the four bullets/casings. At trial, Mr.

Bourgeois’ lawyer argued strenuously that it was not possible to link Mr. Bourgeois to the bullets, let alone the revolver, because of the possibility of DNA transference. After the revolver was found, the bullets were emptied onto the bed’s mattress or box spring, and Mr. Bourgeois testified that he had sexual relations on the bed only days before. [ 22 ] Neither the Crown nor Mr. Bourgeois called as a witness the woman who occupied the apartment where the gun was found. Ultimately, as urged by Mr. Bourgeois’ counsel, the judge rejected the Crown’s contention that Mr.

Bourgeois’ DNA evidence, together with the viva voce evidence of him holding a revolver in Mr. Arbeau’s vehicle, was sufficient to prove beyond a reasonable doubt that the revolver found in the search was the gun fired by Mr. Bourgeois in the shooting on Guilford Street. [ 23 ] Mr. Bourgeois testified in support of his alibi defence. When questioned by police shortly after his arrest, Mr. Bourgeois denied he was in Mr. Arbeau’s vehicle when the shooting occurred. At trial, he testified he was at home with his girlfriend and his son.

He testified his girlfriend ordered Kentucky Fried Chicken via Skip the Dishes and she paid using her bank card since he did not have one. Before this Court, he said he paid with his card. The police did not witness any food delivery after 5:26 p.m. Mr. Bourgeois also testified that he had a surveillance camera that would prove he was home and had told the police he could take them to see it; however, it was not retrieved and Mr. Bourgeois testified the recording was stolen days later, when his home was broken into, while he was remanded in jail.

Although his direct evidence at trial asserted the break-in occurred three days later, on cross-examination, he indicated it was a week later. [ 24 ] In

summary, the trial judge rejected Mr. Bourgeois’ alibi evidence and found it did not raise a reasonable doubt in relation to the evidence advanced to establish he was in Mr. Arbeau’s vehicle . He found that Mr. Bourgeois fired a gun; however, he did so without having accepted the Crown’s claim that the gun located on Castle Street was proven to be the gun used in the shooting. Lastly, the judge concluded the evidence did not establish Mr. Bourgeois fired the gun with the intent to injure Mr. Brown and/or Mr. Sherwood, which was the most serious of the charges brought against him:

That, I have no doubt that the incident took place on the date alleged at Guilford Street in Saint John, New Brunswick and I have no doubt in my mind that Mr. Bourgeois did in fact discharge a firearm, but the issue becomes was he firing the firearm at James Brown, or was it simply a situation where he was attempting to scare Mr. Brown or intimidate him in some way[…] . […] […] my position is that in order to convict Mr. Bourgeois, I would have to come to the conclusion that he intended to endanger his life by firing the revolver at Mr.

Brown and I’m left with a reasonable doubt as to that intention . [Emphasis added; Transcript, April 9, 2021, p. 35, l. 17 to p. 36, l. 16] […] In this particular case, I come to the conclusion that discharging that firearm as he did was reckless as to the life and safety of another person, so he is found not guilty under 244, but guilty under

section 244.2 of discharging a firearm and being reckless as to the life and safety of another person . [Emphasis added; Transcript, April 9, 2021, p. 38, ll. 3-8] [ 25 ] In the end, the trial judge found Mr. Bourgeois guilty of the offences listed below and imposed the sentences indicated, less time served of 341 days: Offence

Section Sentence Discharging firearm s. 244.2(1)(b) 7 years Failure to comply with probation order s. 733.1 6 months consecutive to any other sentence Assault with a weapon or causing bodily harm s. 267(a) 1 year concurrent Pointing a firearm (at Mr. Brown) s. 87 1 year concurrent Unauthorized possession of firearm s. 91(1) 1 year concurrent Assault with a weapon or causing bodily harm s. 267(a) 1 year concurrent Pointing a firearm (at Mr. Sherwood) s. 87 1 year concurrent Possession of weapon for dangerous purpose s. 88 1 year concurrent III. Grounds of Appeal [ 26 ] In relation to his convictions, Mr.

Bourgeois maintains: (1) the judge’s assessment of his alibi defence did not properly consider the failure of the police to obtain evidence that would have proved his alibi; (2) the ineffective assistance of his legal counsel caused the trial to result in a miscarriage of justice; and (3) the judge erroneously failed to declare a mistrial despite his advising the judge (after Mr. Bourgeois had been found guilty, but before he was sentenced) that the prosecutor at trial had previously represented him and, somewhat relatedly, the prosecutor previously worked at the same firm as his trial counsel (which Mr.

Bourgeois raised for the first time on appeal). [ 27 ] Mr. Bourgeois seeks leave to appeal sentence on the basis that the seven-and-a-half-year sentence is “way too much time compared to other peoples cases.”

IV. The Appeal Against Conviction A. Assertion respecting the police failure to obtain evidence of alibi [ 28 ] While the failure of the police to pursue Mr. Bourgeois’ surveillance recordings was a primary focus of his submissions on appeal, he did not identify an error in the trial judge’s consideration of this evidence.

I view the essence of his position to be that, since he promptly told the police he had a recording that would prove he was home when the shooting occurred, their failure to retrieve the recording or otherwise investigate his alibi should have precluded the judge from rejecting his alibi or, at the very least, it should have caused the judge to have had a reasonable doubt about whether he was present when the shooting occurred. His counsel made a similar argument at trial. [ 29 ] Concerns over the failure to pursue Mr.

Bourgeois’ claims regarding his surveillance camera and/or ordering food from Skip the Dishes were expressed by the trial judge more than once during the trial; however, it would be wrong for Mr. Bourgeois to believe the failure to retrieve the recording or investigate his alibi generally would necessarily result in the Crown being unable to rebut or disprove his alibi evidence and establish the elements of the offences with which he was charged. [ 30 ] In my opinion, the trial judge properly considered the failure to investigate the “lost” recording.

He expressly stated that it could prejudice the Crown’s effort to rebut or disprove Mr. Bourgeois’ alibi evidence, namely his testimony that he was home. This is reflected in an exchange with Crown counsel during closing submissions. To address concerns that the judge had raised previously regarding the failure to investigate Mr. Bourgeois’ claim to have a surveillance recording, the Crown argued that an adverse inference could not be drawn, and it referred the trial judge to R. v. Levesque , 2003 ABCA 349 , [2003] A.J. No. 1480 (QL) (as it did in its submission to this Court).

However, the Crown properly acknowledged the trial judge’s view that a failure to investigate an alibi could increase the “risk” of the Crown failing to disprove the alibi. In R. v. Levesque , the court stated: We reject the appellant’s argument that an adverse inference ought to be drawn against the Crown for failing to investigate the alibi evidence. The Crown has the onus of proving its case beyond a reasonable doubt and rebutting any alibi evidence.

Failure to investigate the appellant’s alibi carried with it a risk to the Crown of failing to disprove the alibi; but it did not prejudice the appellant, who was in a position to benefit from the Crown’s failure to disprove the alibi. The defence was in as good a position, if not better than the Crown, to bring additional evidence to support the alibi. [para. 5] [ 31 ] In essence, while the failure to investigate the surveillance recording, or other evidence respecting Mr.

Bourgeois’ alibi, made it more difficult for the Crown to disprove his alibi, it is not determinative and must be considered in the context of the full evidentiary record. [ 32 ] After considering all the evidence, the trial judge was satisfied beyond a reasonable doubt that Mr. Bourgeois was in the vehicle at the time of the shooting. This determination was grounded in the judge’s assessment of inconsistencies in Mr. Bourgeois’ alibi evidence and the strength of the other evidence to the contrary. The judge’s assessment began with his

summary of Mr. Bourgeois’ testimony, which he went on to reject: The next witness to testify was Mr. Bourgeois. He indicated he’s 32 years of age and resides at 254 Waterloo Street with his son who is now eleven. He says on the day in question, he got up around noon – apparently he’d been playing PlayStation 4 all night long – and had a bite to eat. He said at 3:00 that day, some mail came apparently that contained some checks for one Cody Martin, who apparently was using or living with Mr.

Bourgeois, and these COVID relief checks apparently appeared and he said Cody Martin had been missing for a few days and he understood that maybe he’d moved to Guilford Street. He said he had two CERB checks in the amount of $2,000 each for Mr. Martin. He said Martin didn’t have a phone, so he decided to go over to Guilford. He said at 3:20 – 3:30 Jason Arbeau showed up and off they went. He said he was in the back of the vehicle which the other Crown witnesses indicated he was, and they left, went over to Guilford Street and went up Guilford Street to give Mr. Martin his checks.

He said he went to check and nobody was there and he simply had told Mr. Martin’s cousin that he has the checks for him. At that point they left, then they went back down Guilford Street through the intersection at Ludlow and he said he realized that there were three people there. He recognized James Brown but didn’t know who the other people were. He said going up, he saw two people there and he said he told Mr. Arbeau not to stop. He was aware of course that Mr. Brown had been charged with shooting his mother’s house, but he told him not to stop and keep on going.

He said they didn’t stop, they went down to Market Place, got on the Harbour Bridge, went to Garden Street, down past Waterloo Street where he got dropped off. He said he was dropped off around 4:10 – 4:15. He said Mr. Arbeau was going to go to the mall to drop off his girlfriend or get his girlfriend. He said his son wanted Kentucky Fried Chicken, so they ordered Kentucky Fried Chicken and he said it arrived around 5:00 and indicated he was there again, eating chicken with his son from 5:00.

Later that evening his girlfriend wanted to go to the mall to get some cosmetics, so he called Arbeau and he says he showed up. He says they got as far as Richmond Street when the police arrested them. He said he was arrested by the police and told them he didn’t have any guns. He says he was taken to the police station where he divulged what is referred to as an alibi

in this case, saying that he had video surveillance on his house and they should go to his house and retrieve the video surveillance, and he was requesting gunshot residue tests apparently. The upshot of his evidence of course is that he was only in the area on two occasions; the first when he drove up Guilford Street to try and deliver these checks, and secondly, he came back down and told Arbeau not to stop. He said they at no time did they go on Ludlow Street and he says he never had a gun pointed outside the window.

When questioned as to the gun that was found at Kelsey Gillis’ residence, he says he knows her and he met her in a bar and seen her around a bit. She says – he said out of the blue a few days earlier she’d Facebooked him. He went up to her place, again, a couple of minutes from his. They had a few drinks, ended up sleeping together and having sex in the double bed. She was only there three or four hours and then he left. He says he knows Mr. Sherwood, which again simply confirms Mr. Sherwood’s evidence. He said he doesn’t really know Natalie(sic) Chevarie that well.

He was questioned on cross-examination as to whether he was upset with Mr. Brown having shot at his mother’s house and whether he wanted quote unquote “revenge” and he said he just apparently got custody of his child, he’s had him for a few years and didn’t want to involve himself in anything that would jeopardize that and he certainly never tried to approach Mr. Brown about that incident because again, he did not want to jeopardize his personal situation with his son.

In the course of cross examination, he was adamant that he only went up Guilford Street to try and deliver the checks and then came straight back down and, at this point, the video of Guilford Street during the time in question was played, and there’s no question that you can see the Ford Escape go up the street and at no time does the vehicle come back down. The vehicle is seen again at 4:56 coming up the street, having been seen once in the video as going up at 4:37. So it went up on two occasions, the first time without incident, the second time with someone hanging out the window with a gun in their hand.

So, his position of course is that he wasn’t there and didn’t do it. He drove by once and – or twice, and, but no incident took place as described by the Crown witnesses. [Emphasis added; Transcript, April 9, 2021, p. 21, l. 20 to p. 25, l. 12] [ 33 ] Explaining his reasons for finding Mr. Bourgeois’ testimony regarding his alibi to be not credible, the trial judge stated: You see it’s a lot of testimony, but a lot of it is ancillary to the main issue that has to be determined here which essentially is whether Mr.

Bourgeois was the passenger in the vehicle that drove by the Guilford Street Ludlow intersection with someone discharging a firearm . Now, considering the evidence of Mr. Brown and Mr. Sherwood, it’s clear that from the evidence of Constable Janes that when he first arrived there both were extremely upset and the Constable says he saw Mr. Bourgeois’ name on the phone and could hear yelling back and forth, which is exactly what Brown says happened. Further Brown and Sherwood say that this Ford drove by again a short time after the incident and the officer confirmed that .

They did in fact see the vehicle drive by fast on Ludlow Street. Considering the evidence of Mr. Brown and Sherwood as to whether it was Mr. Bourgeois who drove by the first time and looked at them, which Mr. Bourgeois essentially says he did, although the times are a bit off. It makes no sense for Mr. Arbeau(sic) [Mr. Brown?] to go get a bat if he didn’t have some concern that something was going to happen between he and Bourgeois after the vehicle went by the-the residence the first time.

It’s also clear from the evidence from the police who attended the scene that both Brown and Sherwood were extremely upset, given what was testified to that would be reasonable, and in terms of identifying Mr. Bourgeois, both these individuals know him and know him well. This is not a case of eyewitness identification by people who are not familiar with somebody.

Admittedly the chance to observe here was short, which is certainly something considered when we look at eyewitness evidence, but on the other hand, familiarity with the person you’re looking at is a significant factor that would tend to give them credibility. Given that the time stamp of 4:56 is being the time when the vehicle drove by with the person with their arm out the window with what appears to be a gun, the fact that Mr.

Bourgeois is back at home at 5:26 is not, in my respectful opinion, a significant factor since it’s but a few minutes to drive from Market Place across the Harbour Bridge, up Garden Street and then drop down to Waterloo Street. It’s a very, very short drive and the incident is alleged to have happened at – shortly before five, and clearly there would be more than enough time for Mr. Bourgeois, having left the scene in a hurry, as described by the civilian witnesses. He certainly could’ve got – been home by the time the police arrived to surveil his place at 5:26 and thereafter see him outside the house at 5:42.

Considering the other evidence that would tend to corroborate that of Mr. Brown and Mr. Sherwood, we have Ms. Chevarie who admittedly is Mr. Brown’s girlfriend, but on the other side of the coin, she has no issue with Mr. Bourgeois. She testified in a straightforward and reasonable fashion and struck me as being extremely forthright in her evidence to the Court. Her evidence is quite simply that she saw Mr. Bourgeois, who she knows, with a gun.

At that point, her reaction was to take young Charlie to safety in the back of the residence which obviously she would not have done if she had not seen the gun in question. The other aspect of her evidence which I think is of significance here is when she’s shown the photograph of the gun, she-she doesn’t say that’s the gun or identified it as being the weapon in question, she just said it looks like a gun that he had in his hand.

And, certainly from my perspective having observed her and all the other witnesses, she was perhaps the most impartial of the three; Brown, Sherwood and her, in terms of what did or didn’t happen. She was pretty straightforward. She saw Bourgeois with a gun in his hand and that was it, she grabbed the young fella and headed to the back of the apartment. Now, Mr. Bourgeois’ evidence. It’s clear-clearly contradicted by the video of what transpired on Guilford Street that afternoon. The video itself shows Arbeau’s car come up the street twice and never showed it going back down as described by Mr. Bourgeois.

Therefore, at 4:37 he was in a vehicle that went up Guilford Street as testified to by Brown and Sherwood and he couldn’t have been home at 4:30 as he says. The video also indicates that at 4:39 the bat was retrieved by Brown, fearing some altercation and then the vehicle at 4:56 is seen coming up again with someone with their arm out the window. [Emphasis added; Transcript, April 9, 2021, p. 25, l. 12 to p. 28, l. 20] [ 34 ] The trial judge also explained why Mr. Bourgeois’ testimony did not raise a reasonable doubt in relation to the evidence advanced by the Crown to establish he was in Mr.

Arbeau’s vehicle and discharged the revolver. He stated:

In this case, Mr. Bourgeois indicated that he was not there. I’ve indicated the reasons why I find his evidence unacceptable and I don’t accept his explanation as to what did or didn’t happen on that day and I am of the opinion that the evidence of the two complainants, as well as the civilian witnesses is-is an accurate representation of what transpired. This of course gives rise to the issue of W.D. since I do not accept the evidence of Mr. Bourgeois and it does not leave me with a reasonable doubt.

I have been careful, having disbelieved the alibi, not to consider this in assessing either his credibility under the second stage of the W.D. analysis and more importantly, whether or not the Crown has established it’s case beyond a reasonable doubt. Having not accepted his evidence and not being left with a reasonable doubt by it, I have to consider all of the evidence that the – that it was Mr. Bourgeois in that vehicle who discharged the firearm as described by Brown, Chevarie and Ms. Wilcox, and I come to that conclusion beyond a reasonable doubt.

He was the passenger in that vehicle, and he did in fact discharge the firearm on the date in question at the corner of Ludlow and Guilford , as described by the witnesses. [Emphasis added; Transcript, April 9, 2021, p. 34, l. 8 to p. 35, l. 6] [ 35 ] In my opinion, there is no error in the judge’s assessment of the evidence or his findings. As the Crown highlighted in its submissions to this Court, Mr. Bourgeois’ testimony was both internally inconsistent, and demonstratively inconsistent with other accepted evidence. Having testified on direct examination that Mr.

Arbeau had dropped him off at home between 4:10 p.m. and 4:15 p.m. and his food order was delivered by 5 p.m., he varied this account on cross-examination to being dropped off by 5:00 p.m. and the food being delivered by 5:20 p.m. Mr. Bourgeois also testified he was in Mr. Arbeau’s vehicle only once when it went up Guilford Street, and he stated, emphatically, that they drove back down Guilford Street, explaining that, when they did so, he saw Mr. Brown and told Mr. Arbeau to keep driving. The surveillance recording of Guilford Street (which covered the period from 3 p.m. to 5 p.m.) shows Mr.

Arbeau’s vehicle going up Guilford Street on only two occasions, twenty minutes apart (at 4:37 p.m. and 4:57 p.m.), and not returning down the street at any time. [ 36 ] Moreover, as the Crown also emphasizes, despite Mr. Bourgeois’ complaints regarding the failure of the police to secure evidence that he says would have proved his alibi, the evidence to which he refers, including receipts of the food delivery and testimony of Mr. Arbeau and his girlfriend (who he said was with him and his son at the time of the shooting), was available to Mr.

Bourgeois and, indeed, he was in the best position to secure and produce this evidence. [ 37 ] I would dismiss this ground of appeal. B. Assertion that counsel was not competent [ 38 ] In Gardiner v. R. , 2010 NBCA 46 , 362 N.B.R. (2d) 179 , Richard J.A., as he then was, explained the basis for appellate intervention in response to a claim of ineffective assistance of counsel at trial: It is incontestable that, in the modern Canadian criminal justice system, a person who chooses to be represented by a lawyer has the right to the “effective assistance” of that counsel .

This proposition goes to the very heart of the adversarial system upon which our criminal justice system is founded. It is a principle the Supreme Court of Canada recognized in R. v. G.D.B. , 2000 SCC 22 , [2000] 1 S.C.R. 520 , as a principle of fundamental justice that is “derived from the evolution of the common law, s. 650(3) of the Criminal Code of Canada , and ss. 7 and 11(

d) of the Canadian Charter of Rights and Freedoms ” (para. 24). It follows, therefore, that in some circumstances, the ineffective assistance of counsel at trial may form the basis for appellate intervention. However, the standard is high. To be successful in an appeal based on an ineffectiveness claim, an appellant must establish that his counsel's “acts or omissions constituted incompetence” (the performance component) and that “a miscarriage of justice resulted” (the prejudice component) . Appellate interference is only justified when both components have been established.

This is such a case. [...] [I]n the course of a trial, defence counsel is called upon to make a number of strategic judgment calls, and judges should not lightly “second guess the tactical decisions of counsel” (see R. v. S.G.T. , 2010 SCC 20 , [2010] S.C.J. No. 20 (QL) , at para. 37 ). As the Supreme Court said, “[i]n an adversarial system of criminal trials, trial judges must, barring exceptional circumstances, defer to the tactical decisions of counsel” and there is “a ‘strong presumption’ that defence counsel are competent in advancing the interests of their clients” (para. 36).

Appellate judges are likewise duty bound to apply that deferential approach. [Emphasis added; paras. 1, 2 and 10]

[39] Recently, in Smith-Kingsley v. R., 2021 NBCA 51, [2021] N.B.J. No. 296 (QL), per Drapeau J.A., the Courtreiterated the applicable principles: The law on counsel ineffectiveness as a basis for appellate intervention is settled, at least for our present purposes. I distill the followingprinciples from the jurisprudence emanating from the Supreme Court of Canada and this Court: (1) the appellant bears the burden ofdemonstrating defence counsel's performance was incompetent in material respects (the performance component).

This conditionis only met if the representation is shown to be outside the realm of reasonable professional judgment; perfection is not the benchmark.Where it is determined there was no miscarriage of justice, the Court will often refrain from delving into the performance component.That said, the Court may do so where it considers the allegation of incompetence is bereft of merit and unfair to trial counsel; (2) theappellant also bears the burden of demonstrating a miscarriage of justice occurred as a result of counsel’s incompetence (theprejudice component); (3) a miscarriage of justice may take many forms, including procedural unfairness or verdict unreliability.

Averdict will be deemed unreliable where the Court concludes it may have been different had counsel acted competently; (4) inassessing an allegation of ineffectiveness, the Court must bear in mind the presumption of professional competence will standunrebutted absent compelling evidence of malpractice. Relatedly, and in the absence of evidence of that nature, the Court mustabstain from second-guessing defence counsel’s strategic decisions; and (5) trial counsel is expected to provide the Court with afulsome response to the appellant’s allegation of incompetent representation in first instance. See Boucher v.

R., 2021 NBCA 36, [2021]N.B.J. No. 201 (QL), at paras. 14-19, where the leading cases are collected. [Emphasis added; para. 22] [40] Mr. Bourgeois’ claim that his lawyer’s assistance at trial was deficient is premised on a number of assertions.In my opinion, at least one is patently inconsistent with the record. The others do not establish there was either procedural unfairness orverdict unreliability, nor do they indicate his lawyer was incompetent in any material respect. [41] Mr.

Bourgeois advances the broad assertion that, on March 30, 2021, his lawyer would not call additional,necessary evidence in support of his defence because he was suspended from practicing law, beginning April 1, 2021. Nothing in therecord supports this allegation; indeed, in my view, it is refuted by the record. [42] After five days of trial, on March 8, 2021, the Crown closed its case, and defence counsel advised that oneadditional day would be required for up to potentially three defence witnesses. Court was adjourned to Monday, March 15, 2021. OnMarch 15, Mr.

Bourgeois testified, and counsel asked to call one more defence witness, on March 16. This was a police officer who hadpreviously testified for the Crown, but was unavailable on March 15. After the officer’s brief testimony on March 16, the parties madetheir closing submissions, and the judge reserved his decision, until March 30. The Crown submitted post-trial submissions on March 17,2021, and March 22, 2021. Mr. Bourgeois’ counsel filed his written submission on March 24, 2021. [43] I pause here to note the post-trial submissions highlight the live issues the judge was required to consider.

In itssubmissions, the Crown addressed the court’s ability to draw an inference that a gun was fired, even if the court could not conclude thegun recovered by the search warrant was used in the shooting, and/or the absence of a bullet to indicate a gun had been fired. The Crownalso addressed the role of DNA evidence and the required analysis consistent with R. v. W.(D.), (SCC), [1991] 1 S.C.R.742, [1991] S.C.J. No. 26 (QL). In the submission filed by his counsel, Mr. Bourgeois also addressed the DNA transference and theweakness in the evidence to establish that a gun had been fired.

He also made submissions regarding the duty of the police to investigateand the consequences of the police’s failure to do so in relation to his alibi. [44] On March 30, the judge advised that a health issue had intervened, and it was necessary for him to adjourn toApril 9, 2021. Mr. Bourgeois’ trial counsel advised he could not attend on April 9, but another lawyer would be present for the decision. [45] Nothing in this supports Mr. Bourgeois’ assertion that his counsel’s upcoming temporary suspension (as ofApril 1, 2021) had any bearing on the evidence called in his defence on March 15 or 16, 2021.

On the contrary, it indicates his lawyerwas not constrained by time in calling evidence or in making submissions that included a post-hearing brief. [46] Mr. Bourgeois also asserts his lawyer was ineffective at trial because he would not:

a) call as witnesses: (

i) his mother; (ii) his co-accused, Mr. Arbeau, or (iii) Morgan Colton (he did not make the same assertionabout his girlfriend, who did not testify);

b) inquire about the police having evidence that Mr. Arbeau, his co-accused, was shopping at Marshall’s at 5:15 p.m.;

c) cross-examine police officers about: (

i) testifying at a bail hearing that a bullet had been found and sent away for ballistics when this was not the case; (ii) their contaminating DNA evidence; and (iii) not following up with alibi evidence; or

d) cross-examine Mr. Brown and Mr. Sherwood on their long criminal records or to prove they lied since the video evidence showed that Mr. Brown grabbed a weapon before Mr. Arbeau’s vehicle drove past a second time (at 4:56 p.m., when the shooting occurred). [ 47 ] Mr. Bourgeois’ trial counsel filed an affidavit responding to the allegations of ineffective counsel and conflict of interest. He explained he was not Mr.

Bourgeois’ first lawyer and that another lawyer had represented him when he elected a trial in Provincial Court and entered a plea. [ 48 ] His lawyer deposed generally that “each aspect of this case was addressed. Each witness that was [germane] and could testify was examined and cross examined. Even though some aspects of the case were important to Mr. Bourgeois, decisions had to be made in a tactical and strategic manner, contrary to Mr. Bourgeois’ understanding. Mr.

Bourgeois criticized me for not calling his mother, whom I spoke to and who had no positive [evidentiary] value.” [ 49 ] More specifically, in relation to the evidence of Mr. Bourgeois’ alibi, counsel emphasized that Mr. Bourgeois’ surveillance recording was lost due to a break-in before he was retained. In relation to Mr. Bourgeois’ claim that there was video evidence of Mr.

Arbeau being at a mall at around 5:15 p.m., which would also prove he was at home when the shooting occurred, counsel swears that all “evidence was reviewed, and this timeline was in evidence, and explored[;] this alibi defense was unable to be corroborated as Mr. Bourgeois would not permit calling Mr. Arbeau nor Mr. Bourgeois’ girlfriend as witnesses. The importance and potential value of this evidence was emphasized to no avail.” This later statement contradicted Mr. Bourgeois’ assertion regarding his girlfriend and Mr. Arbeau. [ 50 ] Mr.

Bourgeois did not reply to this, nor did he provide any evidence from either Mr. Arbeau or his then girlfriend to indicate the essence of their evidence and whether it would be supportive of his position, as he suggested would be the case. Mr. Bourgeois suggested his lawyer did not want to call Mr. Arbeau because he had previously represented him. His lawyer acknowledged having done so a few years before in relation to a family matter; however, it is not apparent why the prior representation would be problematic, especially since Mr. Bourgeois said that Mr.

Arbeau should have been called as a defence witness, who would be helpful to his case and would not be adverse to him. Regardless, Mr. Bourgeois has not established that trial counsel was incompetent for not calling Mr. Bourgeois’ girlfriend or Mr. Arbeau. Without more, in the context of the record before this Court and trial counsel’s efforts on Mr. Bourgeois’ behalf, it is simply not reasonable to accept the suggestion that counsel would not have made the effort to call witnesses who ostensibly were prepared to say Mr. Bourgeois was somewhere else at the time of the shooting. [ 51 ] Mr.

Bourgeois argued that Ms. Colton was not called as a witness by the Crown because she was going to lie, and he had evidence to prove it. While, at trial, Ms. Colton was identified as the mother of Mr. Brown’s son, Mr. Bourgeois gave no indication how her evidence, if called, would have helped his case. [ 52 ] Trial counsel responded to additional issues raised by Mr. Bourgeois, which counsel described as Mr. Bourgeois being concerned over “the details of the event, [and] what was said and what was not said at trial.” I take this as a reference to Mr.

Bourgeois’ various claims that certain witnesses made statements during their testimony that were mistaken or conflicted with other evidence, which Mr. Bourgeois contends should have caused his lawyer to prove these witnesses were wrong, either by conducting a more thorough cross-examination or, in some instances, calling additional evidence. Trial counsel states that, by focusing on such minor inconsistencies in testimony at trial, Mr. Bourgeois “ignores the evidence” from the surveillance video that “corroborated the Crown evidence respecting the travel route of [Mr.

Arbeau’s] vehicle rather than the evidence of Mr. Bourgeois.” [ 53 ] I agree that many of the inconsistencies asserted by Mr. Bourgeois would not, even if made out, have a material bearing on the judge’s findings of fact in relation to the elements of the offences with which he was convicted. For example, additional cross-examination of police officers about ballistics, the contamination of DNA evidence or the failure to investigate alibi evidence could not reasonably be expected to change the outcome of the trial. Regardless of what Mr.

Bourgeois understood from a bail hearing about ballistics, the evidence at trial was that no bullet was found. The lack of a bullet was an acknowledged weakness in the Crown’s case; however, it forced the Crown to otherwise prove, beyond a reasonable doubt, Mr. Bourgeois fired a gun. Additionally, the officers were cross-examined regarding the DNA evidence and the lack of an effort to secure the surveillance video before it was alleged to have been stolen. Again, both were acknowledged to be weaknesses in the Crown’s case. The first caused the judge to reject the

suggestion the gun recovered by search warrant (which had Mr. Bourgeois’ DNA on the shell casings) was the gun fired at Guilford and Ludlow Streets. The second, as addressed above, was acknowledged to increase the risk of the Crown not being able to disprove the alibi. [ 54 ] In sum, in relation to these issues, trial counsel largely succeeded in emphasizing or establishing weaknesses in the Crown’s case; Mr. Bourgeois’ assertions that trial counsel should have done more regarding them appears to reflect a belief that, if more had been done, the trial judge would have had a reasonable doubt about guilt.

Based on the other evidence, that is not so. [ 55 ] Similarly, additional cross-examination of Mr. Brown and Mr. Sherwood on their long criminal records would not have given rise to a materially increased level of scrutiny of their evidence. Mr. Brown plainly admitted his checkered history with Mr. Bourgeois and his conviction for firing a gun at Mr. Bourgeois’ mother’s home. The judge expressly noted they were both unsavoury witnesses: I’m also mindful of the fact that Mr. Brown and Mr. Sherwood might be what one would consider unsavoury witnesses, again, to be polite.

They both presented as cocky, street-smart and self-assured, bordering on arrogant to some extent and I’ve considered that, but on the other side of the coin that brings with it the fact that they are familiar with firearms and they happen to know Mr. Bourgeois quite well. So while they may be of questionable character in some respects, it doesn’t mean automatically that their evidence is not to be believed and that of course applies to everyone who testified, particularly the accused. [Transcript, April 9, 2021, p. 33, ll. 12 to 25] [ 56 ] The same may be said of Mr.

Bourgeois’ assertion that trial counsel should have caught Mr. Brown and/or Mr. Arbeau in a lie over when Mr. Brown grabbed the bat from Ms. Chevarie’s vehicle. It was clear from the surveillance video this occurred after Mr. Arbeau’s vehicle drove past the first time and was the finding made by the judge. Any inconsistency in the evidence of either of these witnesses was obvious to the trial judge. [ 57 ] I will now address two other assertions made by Mr. Bourgeois. First, he maintains his trial counsel told him, “it didn’t matter if [he] took a two-year plea deal because [his] co-accused (Mr.

Arbeau) was only sentenced to one year and [he said] sentences must be [in] the same range;” but, “after trial he said he had it wrong because [his] co-accused pled out to a lesser charge.” Mr. Bourgeois also states that this can be proved since “all lawyer call[s] are recorded on jail phones.” [ 58 ] Trial counsel swore in his affidavit that Mr. Bourgeois was “facing more serious charges” than Mr. Arbeau, and he explained that Mr. Bourgeois’ previous lawyer had proposed a plea deal of two and a half years, less time served, with which he (trial counsel) and the Crown agreed; however, Mr.

Bourgeois had “no interest” in a resolution “until the DNA results became available at which time [Mr. Bourgeois] advised he would accept a resolve of 2.5 years less time served but at that point the Crown (due to evidence) increased their resolve to 4 years (less time served) which Mr. Bourgeois rejected.” [ 59 ] Before us, Mr. Bourgeois implicitly suggests the advice and expectation that he could get a one-year sentence, like Mr. Arbeau, deprived him of the chance to take the two-and-a-half-year plea deal. Stated simply, this is self-serving and not credible.

When the two-and-a-half-year plea deal was offered, it was apparent he was facing more serious charges, which included a five-year minimum sentence. The idea that, through a conviction following a trial, his sentence would or could align with Mr. Arbeau’s one-year plea deal is contrary to common sense and, further, is contrary to the evidence of trial counsel. If Mr. Arbeau was to receive less than a five-year sentence, it would necessarily be based on a plea deal to a lesser charge. It may be that Mr.

Bourgeois now wishes he took the deal, but I do not accept that he did not take it because he was given advice that following a conviction at trial his risk was a sentence similar to Mr. Arbeau’s plea deal. It may have been that Mr. Bourgeois concluded he should hold out for a plea deal similar to that offered to Mr. Arbeau, but that is a different thing. Regardless, Mr. Bourgeois has not established the factual basis to support his position. [ 60 ] Second, Mr.

Bourgeois asserts his lawyer “didn’t argue the mandatory minimum sentence was unconstitutional.” This is advanced as a bald assertion, without any suggestion as to his basis for implicitly asserting his counsel was incompetent for not raising a constitutional challenge to the five-year minimum. Trial counsel does not comment on the issue, presumably because he did not address sentence. Moreover, the trial judge sentenced Mr. Bourgeois to seven years after considering the sentence imposed on similar offenders in similar circumstances over the minimum. The minimum sentence was not in play in Mr. Bourgeois’ case. C.

Refusal to declare a mistrial based on the Crown prosecutor having previously represented Mr. Bourgeois

[ 61 ] After Mr. Bourgeois had been found guilty (on April 9, 2021), but before he was sentenced, his lawyer notified the judge (by letter dated April 20, 2021) that Mr. Bourgeois had recently realized the Crown prosecutor at his trial had represented him previously, in 2019, and he asserted the prosecutor had been in a conflict of interest during his trial. The sentencing hearing was scheduled for April 22, 2021. As noted, beginning in April 2021, Mr.

Bourgeois was represented by another lawyer from his trial counsel’s firm. [ 62 ] At the hearing on April 22, 2021, a different prosecutor appeared for the Crown, and Mr. Bourgeois’ lawyer pressed the conflict issue. The judge decided a mistrial was not warranted based on the alleged conflict, and he denied a request for an adjournment to permit a Charter application to be made in relation to the alleged conflict. Mr.

Bourgeois argues on appeal that the conflict meant the trial was not fair and the judge erred. [ 63 ] Before going further, I pause to address a couple of other issues that arose at the hearing on April 22, 2021. After ruling on the alleged conflict, the judge adjourned the sentencing hearing to June 25, 2021, to give Mr. Bourgeois an opportunity to both obtain a presentence report and retain new legal counsel. Previously, on April 9, 2021, Mr.

Bourgeois advised the judge he did not want a presentence report since he thought the report from his sentencing in 2019 would suffice; however, after raising the conflict issue, he requested a fresh presentence report. Additionally, he expressed a desire to choose a new lawyer, and not continue with the lawyer from his trial counsel’s firm who had been provided in his place. When the matter returned for sentencing, on June 25, 2021, Mr.

Bourgeois advised he had been unable to secure new counsel through legal aid, but he was prepared to proceed by continuing with the lawyer who had represented him since his trial counsel’s involvement ended. [ 64 ] When the alleged conflict was raised before the judge on April 22, 2021, neither Mr. Bourgeois nor the Crown introduced affidavit evidence; however, both stipulated to the pertinent circumstances regarding the prosecutor’s representation of Mr. Bourgeois in 2019. Prior to joining the Crown, he appeared as duty counsel at Mr. Bourgeois’ sentencing hearing. Mr.

Bourgeois had previously pled guilty to offences, including possessing counterfeit money, with the involvement of another lawyer. [ 65 ] Mr. Bourgeois’ counsel maintained before the trial judge that the conflict had been raised as soon as possible; he explained that Mr. Bourgeois did not remember having been represented in 2019 by the Crown prosecutor. Even though the trial in the within matter began on February 17, 2021, and continued over more than seven days, with appearances into April 2021, he explained it was Mr.

Bourgeois’ brother who made the connection with the prosecutor, after seeing his name in a newspaper report of Mr. Bourgeois’ conviction on April 9, 2021. [ 66 ] Mr. Bourgeois expressed concern over the use of information the prosecutor would have obtained regarding his 2019 guilty plea and/or information relevant to his sentencing for that offence, including the 2019 presentence report. Although he was unable to identify what or how any such information may have been used at the trial by the prosecutor to his prejudice (in obtaining the conviction in the present matter), Mr.

Bourgeois argued that the judge must infer from the prosecutor’s representation that confidential information respecting his background and character had passed and was misused, citing R. v. Lindskog , [1997] S.J. No. 449 (QL) . [ 67 ] The judge decided the circumstances did not justify an inference that confidential information had been shared with the prosecutor and he concluded that no such relevant information had been used to the prejudice of Mr. Bourgeois. This was based on his assessment of both the prosecutor’s limited representation in 2019 and the prosecutor’s cross-examination of Mr.

Bourgeois in the trial before him: Would a reasonable person, looking at the circumstances of this case, feel that some how Mr. Pollabauer was in a conflict and Mr. Bourgeois could not get a fair trial with him conducting the case on behalf of the Crown. And, as I say, a fleeting involvement in Provincial Court, current Court, to speak to sentence after he’s already pleaded guilty is such a fleeting involvement, if you will, with Mr.

Bourgeois that it does not in my mind raise any apprehension of bias, or the possibility of bias, or the appearance, more importantly, of bias, and it’s not something I’m prepared to consider at this point. […] […] the point is, that his involvement with you, in my respectful opinion, was so fleeting, that it does not give rise to an appearance of a conflict of interest, nor does it give rise for his having any information that he could use to your detriment, in the course of the trial, or more importantly on cross examining you. Heck, he didn’t even question you on your record, for God’s sake.

I mean let’s think about it for a minute here. I listened to this whole case, and I’ll be perfectly candid, [the prosecutor’s] here as senior Crown, I’ve seen better cases than this one. Certainly reached the standard proof beyond a reasonable doubt, for the offences by which you were convicted, but

there’s −this wasn’t prosecuted with any vigor, that would give rise to any inference on my part that there was some kind of animosity,rightly or wrongly, towards you. [Transcript April 22, 2021, p. 13, ll. 12-23 and p. 18, ll. 12 to p. 19, l. 4] [68] The judge also observed that it was incumbent upon Mr.

Bourgeois to raise the potential conflict before histrial. [69] On appeal, the Crown maintains the judge properly concluded the circumstances did not provide a basis forinferring the prosecutor received confidential information and it emphasizes that such conflicts must generally be raised at the earliestopportunity, referencing this Court’s recent explanation of the basis for the necessity of doing so, in St. Pierre v. R., 2021 NBCA 48,[2021] N.B.J. No. 283 (QL): Finally, Mr. St. Pierre claimed the Crown prosecutor had represented him in the past. If Mr. St.

Pierre had concerns about this, he had anobligation to raise the issue at trial. Mr. St. Pierre did present a pre-trial motion asking the judge to recuse herself based on anapprehension of bias. The motion was denied. The fact that he is raising the prosecutor’s bias for the first time on appeal, after receivinga lengthy sentence of incarceration, indicates he is displeased with the sentence and is raising this argument in an attempt to obtain amore lenient sentence. The onus of demonstrating bias on appeal rests with the individual who asserts it (M.A.(L.)B. v. T.J.L., 2021 NBCA 5, [2021] N.B.J.

No.24 (QL); and Vautour et al. v. Her Majesty the Queen in right of the Province of New Brunswick et al., 2021 NBCA 4, [2021] N.B.J. No.18 (QL)). In our view, based on the jurisprudence on point, there is no evidence to support Mr. St. Pierre’s contention the Crownprosecutor was biased against him. [paras. 15-16] [70] Lawyers have a fiduciary obligation that imposes a duty of confidentiality that is owed toward not only currentclients but also former clients. Any information obtained from a client in confidence may only be used for the client’s benefit. A lawyercannot use such information against a former client.

In Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, [2013] 2S.C.R. 649, McLachlin C.J. stated (citing MacDonald Estate v. Martin, (SCC), [1990] 3 S.C.R. 1235, [1990] S.C.J. No.41 (QL)): […] A lawyer cannot act in a matter where he may use confidential information obtained from a former or current client to the detrimentof that client. A two-part test is applied to determine whether the new matter will place the lawyer in a conflict of interest:

(1) Did thelawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand?

(2) Is there a riskthat it will be used to the prejudice of that client?: Martin, at p. 1260. If the lawyer’s new retainer is “sufficiently related” to the matterson which he or she worked for the former client, a rebuttable presumption arises that the lawyer possesses confidential information thatraises a risk of prejudice: p. 1260. [para. 24] [71] Speaking to the issue of whether two retainers are related, Cromwell J.A. stated the following, in BrookvilleCarriers Flatbed GP Inc. v. Blackjack Transport Ltd., 2008 NSCA 22, [2008] N.S.J.

No. 94 (QL): Whether two retainers are related must be considered in light of the underlying purpose of the inquiry. In the MacDonald Estate analysis,the focus is on protection of the client’s confidential information.

In that context, two matters will be sufficiently related to trigger theprinciple if, as Goudge J.A. put it in Chapters at para. 30, “... it is reasonably possible that the lawyer acquired confidential informationpursuant to the first retainer that could be relevant to the current matter.” The issue is not so much whether the subject-matter of the tworetainers is the same, but whether confidential information learned in one would be relevant to the other.

Ultimately, the “overridingpolicy” must be “that the reasonably informed person would be satisfied that no use of confidential information would occur.”:MacDonald Estate, p. 1260. [para. 50] [72] In my view, the trial judge did not err in concluding that, in the circumstances of this case, there was norebuttable presumption the prosecutor acquired confidential information that was relevant to the pursuit of a conviction in the currentmatter.

Said differently, he concluded the prosecutor did not receive relevant confidential information, which was at risk of beingmisused, or was in fact used, in the trial before him.

[ 73 ] Further, and perhaps more importantly, the issue of a mistrial could not be assessed by merely asking whether there was a disqualifying conflict, as though it had been raised before the trial began. Even in Lindskog , which Mr. Bourgeois relied upon, the court acknowledged “that the onus must be on the accused to raise any objection prior to the commencement of the trial” (at para. 21) and, on that basis, it distinguished R. v. Foster , [1997] B.C.J. No. 1112 (C.A.) (QL) .

In Foster , the court concluded there was no merit on appeal to an assertion that a prosecutor’s prior representation of the offender was a conflict of interest that resulted in a miscarriage of justice at trial, which the accused raised for the first time on appeal. [ 74 ] While the issue of a conflict arising from a prior representation is almost always raised in advance of a trial and the assessment of whether there is a disqualifying conflict is made prospectively, in this case, the judge concluded, with the benefit of hindsight, that the prosecutor’s prior representation did not result in an unfair trial nor was it in the interests of justice to declare a mistrial.

Even tough he raised the issue after a trial that resulted in his conviction, Mr. Bourgeois was unable to identify, even speculatively, how the prosecutor’s prior representation resulted in a prejudice at the trial. As the judge noted, with the benefit of hindsight and in light of the record upon which Mr. Bourgeois was convicted, it is not at all apparent how that representation resulted in an unfair trial, or that an injustice occurred. I would dismiss this ground of appeal. [ 75 ] Finally, Mr.

Bourgeois raised with this Court, for the first time on appeal, that the Crown prosecutor had previously worked at the same firm as his trial counsel. In his affidavit, trial counsel swore the Crown prosecutor was with his firm from June 16, 2015, to May 19, 2017. Trial counsel also explained that, when the Crown prosecutor was with his firm, neither of them represented Mr. Bourgeois. Mr. Bourgeois does not identify any matter of concern arising from this connection, nor was he a client of the firm to whom a duty of loyalty was owed ( see R. v. Neil , 2002 SCC 70 , [2002] 3 S.C.R. 631 , at paras. 17-19 ) . V.

Leave to Appeal Sentence [ 76 ] Mr. Bourgeois is also seeking leave to appeal his sentence. [ 77 ] The standard for establishing that a sentence is “demonstrably unfit” reflects the “very high threshold that applies to appellate courts when determining whether they should intervene after reviewing the fitness of a sentence” ( R. v. Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089 , at para. 52 ). Recently, this Court in Frigault v. R. , 2022 NBCA 32 , [2022] N.B.J.

No. 149 (QL) , reaffirmed that leave to appeal a sentence “will not be granted where it is clear there is no reasonable prospect of success” ( see also Lapointe v. R. , 2021 NBCA 46 , [2021] N.B.J. No. 281 (QL) , at para. 6 ; St. Pierre v. R. , 2021 NBCA 48 , [2021] N.B.J. No. 283 (QL) , at para. 17 ). [ 78 ] The sentencing judge explained that the minimum sentence for the offence with which Mr. Bourgeois is accused is five years.

However, he went on to explain the following: [Individual] can’t run around the streets of Saint John, with guns, and pull them out, and yap at people, and shoot in an attempt to scare them, or whatever. Just simply can’t happen and it can’t be tolerated. Now, you’ve got a record here that’s not pretty, 7 pages, or 6 I guess, basically. There’s a lot of motor vehicle things on there and a few bylaws, but there’s a little bit of everything there, and it – you just don’t seem to understand the situation. So, clearly the issue of public safety rears its head when we talk about the issue of sentence as well.

I agree with Mr. Bourgeois that he as he noted that in MacKenzie , which was a decision of Judge Rideout, made the comments I’ve just referred to about unbelievability of this type of crime. There was clearly a shot intentionally delivered toward somebody. In this case, as I say I found that you didn’t [intend] to shoot towards them with the intent to endanger their lives, but certainly, it constitutes the offence as – as you were convicted of.

It was reckless as to the safety of others that were there. [Emphasis added; Transcript, June 25, 2021, p. 16, l. 24 to p. 17, l. 19] [ 79 ] Moreover, in deciding a seven-year sentence was fit in the circumstances, the sentencing judge referred to three decisions that imposed a similar or a higher sentence for the same offence ( see R. v. Fredericks , 2017 NBQB 30 , [2017] N.B.J. No. 53 (QL) , at para. 59 ; R. v. Mackenzie , 2006 NBQB 75 , 299 N.B.R. (2d) 252 , at para. 25 ; and R. v. Dhaliwal , 2018 ONSC 303 , [2018] O.J.

No. 278 (QL) , at para. 67 ). [ 80 ] The sentence imposed was demonstrably justified, and Mr. Bourgeois failed to convince me his intended appeal has any reasonable prospect of success. VI. Disposition

[ 81 ] For these reasons, I would dismiss the appeal and the application for leave to appeal sentence. __________________________ Version française de la décision de la Cour rendue par LE JUGE FRENCH I. Introduction [1] Randy Bourgeois a été reconnu coupable de plusieurs infractions criminelles parce qu’il a tiré un coup de feu d’une arme de poing depuis un véhicule. Une question essentielle au procès visait le témoignage de trois personnes, qui affirmaient toutes que M. Bourgeois tenait une arme à l’extérieur de la vitre du passager avant, ce qui contredisait le témoignage de M.

Bourgeois, qui soutenait qu’il avait un alibi et qu’il ne se trouvait pas dans le véhicule lorsque le coup de feu a été tiré. Le juge de première instance a rejeté la preuve d’alibi et était convaincu hors de tout doute raisonnable que, lorsque le véhicule a passé devant deux des témoins, soit James Brown et Austin Sherwood, M. Bourgeois a tiré un coup de feu à la suite d’un échange verbal animé entre eux. [2] M.

Bourgeois interjette appel de la déclaration de culpabilité, soutenant que : (1) le juge de première instance a commis une erreur lorsqu’il a rejeté sa preuve d’alibi parce que la police a manifestement omis de vérifier son alibi ou d’obtenir des éléments de preuve qui l’auraient étayé; (2) le procès a donné lieu à une erreur judiciaire parce que son conseiller juridique n’était pas compétent; et (3) le juge de première instance n’a pas annulé le procès même s’il avait été avisé (par M.

Bourgeois après sa déclaration de culpabilité, mais avant la détermination de sa peine) que le procureur du ministère public au procès l’avait représenté auparavant et avait travaillé pour le même cabinet d’avocats que son avocat de la défense (question qui a été soulevée pour la première fois en appel). [3] En outre, M.

Bourgeois demande l’autorisation d’appeler de la peine de sept ans et demi (moins la durée de la détention préventive ) infligée par le juge de première instance. [4] Pour les motifs exposés ci-dessous, je suis d’avis de rejeter l’appel de la déclaration de culpabilité et la demande d’autorisation d’appel de la peine . II. Contexte [5] Le coup de feu a été tiré vers 16 h 56 le 24 juin 2020 lorsque le véhicule passait devant l’entrée de l’appartement de M. Brown. L’appartement est situé au rez-de-chaussée d’un immeuble sis à l’intersection des rues Ludlow et Guilford Ouest à Saint John.

L’entrée donne sur la rue Guilford. Le coup de feu a été tiré lorsque le véhicule a tourné à droite, quittant la rue Guilford pour s’engager dans la rue Ludlow. [6] La petite amie de M. Brown, Dominique Chevarie, demeurait aussi dans l’appartement et s’y trouvait lorsque le coup de feu a été tiré, tout comme le fils de M. Brown qui avait cinq ans et qui passait l’après-midi avec eux. M. Sherwood s’y trouvait aussi et était arrivé peu avant que le coup de feu soit tiré. [7] Bien que M.

Bourgeois s’oppose au fait que le juge de première instance a rejeté sa preuve d’alibi et à la conclusion de ce dernier selon laquelle il a tiré le coup de feu, les autres faits auxquels le juge a conclu quant aux circonstances du coup de feu n’ont pas été contestés en appel. [8] Je souligne deux faits avant de résumer les événements. D’abord, il ne s’agit pas d’un cas où des étrangers ont identifié le contrevenant. M. Brown, M me Chevarie et M. Sherwood connaissent tous M. Bourgeois. De même, ils connaissent tous Jason Arbeau, qui a été identifié comme étant le conducteur du véhicule.

[9] Ensuite, une caméra de surveillance a capté le véhicule de M. Arbeau qui montait la rue Guilford Ouest, en direction de la rue Ludlow; ce véhicule est passé devant l’entrée de l’appartement de M. Brown et de M me Chevarie à deux reprises, soit à 16 h 37, puis à 16 h 56. Comme nous le verrons ci-dessous, le juge a conclu que l’enregistrement de surveillance étayait la preuve du ministère public et contredisait le témoignage de M. Bourgeois parce qu’il ne montrait pas que le véhicule a redescendu la rue Guilford, comme M. Bourgeois l’affirmait.

La caméra se trouvait dans une fenêtre de l’appartement et était orientée en direction du parc de stationnement de l’immeuble avec vue sur la rue Guilford. La

partie de l’enregistrement qui a été produite en preuve visait la période entre 15 h 30 et le coup de feu à 16 h 56. [10] MM. Brown et Sherwood ont tous deux déclaré que la première fois que le véhicule a monté la rue Guilford, ils ont vu que M. Arbeau était au volant et sa petite amie se trouvait dans le siège du passager. Ils ont aussi vu M. Bourgeois; ce dernier était assis à l’arrière, sa vitre teintée était entrouverte d’environ deux ou trois pouces seulement, mais ils ont croisé son regard. Pendant son témoignage, M. Bourgeois a admis qu’il était assis à l’arrière du véhicule de M.

Arbeau une fois lorsqu’il montait la rue Guilford (en direction de la rue Ludlow), et il a déclaré avoir vu MM. Brown et Sherwood, mais il a dit qu’il n’était pas dans le véhicule lorsque le coup de feu aurait été tiré. [11] M. Brown a déclaré qu’après avoir vu la voiture passer une première fois, il craignait qu’il puisse y avoir une dispute et il est allé chercher un bâton de baseball dans le véhicule de M me Chevarie qui était garé dans la cour à côté de l’immeuble.

Il appert de l’enregistrement qu’il a fait cela environ deux minutes plus tard, soit à 16 h 39. [12] Moins de 20 minutes après que le véhicule est passé la première fois, M. Sherwood est ressorti de l’appartement et a remarqué que le véhicule de M. Arbeau était garé au bas de la côte et qu’il était orienté vers le haut de la rue Guilford. Il a demandé à M. Brown de sortir et il a vu le véhicule s’éloigner du trottoir et s’avancer très rapidement vers le haut de la rue Guilford en leur direction. Il a déclaré qu’il pouvait voir M.

Bourgeois, qui était maintenant assis dans le siège du passager, qui portait un gant et qui tenait une arme à l’extérieur de la vitre. MM. Brown et Sherwood ont déclaré qu’ils pouvaient voir qu’il tenait un revolver. [13] MM. Brown et Sherwood ont dit qu’ils ont échangé des mots avec M. Bourgeois lorsque le véhicule est passé à ce moment-là. M me Chevarie est sortie de son appartement pour voir ce qui causait le vacarme; elle a déclaré avoir vu M. Bourgeois dans le siège du passager du véhicule qui braquait ce qu’elle croyait être une arme à l’extérieur de la vitre.

Elle est retournée dans l’appartement et a amené le fils de M. Brown dans une chambre à coucher vers l’arrière de l’appartement pour qu’il soit en sécurité. Elle a appelé la police. [14] De même, MM. Brown et Sherwood ont affirmé que M. Bourgeois a tiré un seul coup de feu lorsque le véhicule de M. Arbeau a tourné le coin pour s’engager sur la rue Ludlow avant de s’enfuir à toute vitesse. M. Sherwood soutient que, lorsqu’il tentait de se mettre à l’abri derrière sa voiture garée, il a vu une étincelle et de la fumée lorsque l’arme a été déchargée. Bien qu’un autre témoin croie avoir entendu deux coups de feu, MM.

Sherwood et Brown étaient convaincus qu’il n’y en eut qu’un. [15] Même si la caméra de surveillance a capté le véhicule de M. Arbeau qui montait la rue Guilford, l’image floue ne nous permet pas d’identifier les personnes qui s’y trouvaient. Cependant, nous constatons lors du deuxième passage de la voiture que le bras du passager avant est à l’extérieur et qu’il tient ce que le juge de première instance a déclaré être une arme.

Comme le tronçon de la rue Guilford qui fait directement face à l’immeuble n’est pas compris dans l’enregistrement, l’échange de mots et le coup de feu n’ont pas été filmés. [16] Trois autres personnes qui se trouvaient dans le secteur lorsque le coup de feu a été tiré ont aussi témoigné au procès. L’une d’entre elles marchait sur la rue Ludlow, en direction de la rue Guilford, lorsqu’elle a vu le véhicule et le passager avant qui braquait ce qu’elle croyait être une arme à l’extérieur de la vitre. Avant que le véhicule s’enfuie, elle a entendu un bruit qui l’a portée à croire qu’un coup de feu avait été tiré.

Le témoignage des autres personnes portait sur le véhicule qui s’est enfui à toute vitesse sur la rue Ludlow et le fait qu’elles croyaient avoir entendu un coup de feu. [17] Le gendarme Janes est le premier policier qui est arrivé sur les lieux après le coup de feu, soit vers 17 h 03. Dès le début, la police a compris que M. Bourgeois était prétendument le tireur. M. Brown a déclaré avoir reçu sur son téléphone cellulaire un appel de M. Bourgeois lorsqu’il parlait avec le gendarme Janes.

Ce dernier a confirmé que le nom « Randy Bourgeois » s’est affiché comme [TRADUCTION] « identification de l’appelant » sur le téléphone cellulaire de M. Brown. Quelques minutes plus tard, ils ont vu ce qu’ils croyaient être le véhicule de M. Arbeau passer devant eux à toute vitesse sur la rue Ludlow.

[18] Le gendarme Janes a retiré la carte à mémoire de la caméra de surveillance dans l’appartement. Il a remarqué qu’il y avait un trou dans le panneau fenêtre (d’un autre locataire) de l’immeuble, trou qui, a-t-il pensé, aurait pu être causé par une balle. Cela n’a toutefois pas été confirmé et aucune balle n’a été trouvée. [19] M. Bourgeois et sa résidence sise rue Waterloo étaient connus des policiers; ceux-ci sont arrivés sur les lieux dès 17 h 26 et ont surveillé sa résidence. Ils ont d’abord vu M. Bourgeois quitter sa résidence à 17 h 42. Ils ne l’ont pas vu entrer. M.

Bourgeois soutient que cela étaye son alibi. [20] Après 18 h, M. Bourgeois et sa petite amie ont quitté sa résidence et ils sont montés dans un véhicule avec M. Arbeau et sa propre petite amie. Peu après, la police a arrêté le véhicule et a appréhendé MM. Bourgeois et Arbeau. [21] Après avoir reçu un tuyau d’un informateur confidentiel au sujet d’une arme, la police a obtenu un mandat de perquisition le lendemain; ce mandat visait l’appartement d’une femme situé sur la rue Castle, près de la rue Waterloo, à quelques minutes de la résidence de M. Bourgeois.

Les policiers ont trouvé un revolver sous un matelas; il contenait une cartouche vide et trois cartouches/balles inutilisées. L’ADN de M. Bourgeois se trouvait sur les cartouches, mais pas sur le revolver. Il a été impossible d’établir si son ADN se trouvait sur une cartouche, plus d’une cartouche ou toutes les cartouches parce qu’un seul prélèvement a été effectué des quatre balles/cartouches. Au procès, l’avocat de M. Bourgeois a affirmé vigoureusement qu’il n’était pas possible d’établir un lien entre M. Bourgeois et les balles, et encore moins avec le revolver, en raison d’une possibilité de transfert d’ADN.

Lorsque le revolver a été trouvé, les balles ont été vidées sur le matelas ou le sommier du lit et M. Bourgeois a déclaré qu’il avait eu des rapports sexuels dans le lit quelques jours plus tôt. [22] Ni le ministère public ni M. Bourgeois n’a appelé la locataire de l’appartement où le revolver a été trouvé à témoigner. À la demande de l’avocat de M. Bourgeois, le juge a fini par rejeter l’argument du ministère public selon lequel la preuve génétique de M. Bourgeois, de concert avec le témoignage de vive voix établissant qu’il tenait un revolver dans le véhicule de M.

Arbeau, suffisaient pour établir hors de tout raisonnable que le revolver trouvé dans le cadre de la perquisition était l’arme que M. Bourgeois a déchargée sur la rue Guilford. [23] M. Bourgeois a témoigné à l’appui de sa défense d’alibi. Lorsque les policiers l’ont interrogé peu après son appréhension, M. Bourgeois a nié qu’il se trouvait dans le véhicule de M. Arbeau lorsque le coup de feu a été tiré. Au procès, il a déclaré qu’il était à la maison avec sa petite amie et son fils.

Il a dit que sa petite amie avait commandé du Poulet Frit Kentucky par l’intermédiaire de Skip the Dishes et qu’elle a utilisé sa carte bancaire pour payer parce que lui n’en avait pas. Il a affirmé devant notre Cour qu’il avait payé avec sa carte. La police n’a pas été témoin de la livraison de nourriture après 17 h 26. De même, M. Bourgeois a déclaré qu’il avait une caméra de surveillance qui pouvait prouver qu’il était à la maison et qu’il avait dit aux policiers qu’il pouvait la leur montrer. Elle n’a toutefois pas été récupérée et M.

Bourgeois a déclaré que l’enregistrement a été volé quelques jours plus tard lors d’une introduction par effraction commise chez lui pendant qu’il était détenu provisoirement en prison . Bien qu’il ait dit pendant son interrogatoire principal au procès que l’introduction par effraction a été commise trois jours plus tard, il a affirmé pendant le contre- interrogatoire qu’elle a été commise une semaine plus tard. [24] Bref, le juge de première instance a rejeté la preuve d’alibi de M.

Bourgeois et a conclu qu’elle ne soulevait pas de doute raisonnable quant à la preuve produite pour démontrer qu’il se trouvait dans le véhicule de M. Arbeau. Il a conclu que M. Bourgeois a tiré un coup de feu; il a toutefois tiré cette conclusion sans retenir l’affirmation du ministère public selon laquelle il a été établi que l’arme trouvée sur la rue Castle était l’arme qui a été déchargée. Enfin, le juge a conclu que la preuve ne démontre pas que M. Bourgeois a tiré un coup de feu avec l’intention de blesser M. Brown ou M.

Sherwood, ou les deux, soit l’accusation la plus grave portée contre lui : [TRADUCTION] Il n’y a aucun doute dans mon esprit que l’incident a eu lieu à la date alléguée sur la rue Guilford à Saint John, au Nouveau-Brunswick, et il n’y a aucun doute dans mon esprit que M. Bourgeois a effectivement tiré le coup de feu, mais la question qui se pose est celle de savoir s’il avait pris James Brown pour cible ou s’agissait-il plutôt d’une situation où il tentait d’effrayer M. Brown ou de l’intimider en quelque sorte […] […] […] à mon avis, pour déclarer M.

Bourgeois coupable, il faudrait que j’en arrive à la conclusion qu’il avait l’intention de mettre sa vie en danger en déchargeant le revolver braqué sur M. Brown, et j’ai un doute raisonnable quant à cette intention .

[Soulignement et gras ajoutés; transcription, 9 avril 2021, p. 35, l. 17 à p. 36, l. 16] […] Dans le cas qui nous occupe, j’en arrive à la conclusion que le fait d’avoir déchargé l’arme comme il a fait était insouciant et posait un risque à la vie et à la sécurité d’au

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