2021 NBCA 59, 2021 NBCA 59

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 22-20-CA FRED WAYNE HORN APPELLANT FRED WAYNE HORN APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Horn v. R., 2021 NBCA 59 Horn c.

R., 2021 NBCA 59 CORAM: The Honourable Justice Drapeau The Honourable Justice Quigg The Honourable Justice Green CORAM : l’honorable juge Drapeau l’honorable juge Quigg l’honorable juge Green Appeal from a decision of the Provincial Court: July 26, 2019 (conviction) December 11, 2019 (sentence) Appel d’une décision de la Cour provinciale : le 26 juillet 2019 (déclaration de culpabilité) le 11 décembre 2019 (détermination de la peine) A Publication Ban in this matter was issued by the Provincial Court on February 5, 2018. It remains in effect.

Le 5 février 2018, la Cour provinciale a rendu en l’espèce une ordonnance de non-publication qui est toujours en vigueur. History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o. Appeal heard: September 29, 2021 Appel entendu : le 29 septembre 2021

Judgment rendered: December 16, 2021 Jugement rendu : le 16 décembre 2021 Reasons for judgment by: The Honourable Justice Green Motifs de jugement : l’honorable juge Green Concurred in by: The Honourable Justice Drapeau The Honourable Justice Quigg Souscrivent aux motifs : l’honorable juge Drapeau l’honorable juge Quigg Counsel at hearing: For the appellant: Alison J. Ménard For the respondent: Patrick McGuinty Avocats à l’audience : Pour l’appelant : Alison J. Ménard Pour l’intimée : Patrick McGuinty THE COURT The appeal is dismissed. LA COUR L’appel est rejeté.

The judgment of the Court was delivered by GREEN, J.A. A ban pursuant to s. 486.4 of the Criminal Code prohibiting the publication, broadcast, or transmission of any information that could identify the victim in this matter was issued by the Provincial Court on February 5, 2018. It remains in effect. I. Introduction [ 1 ] Following a trial before a judge of the Provincial Court, the appellant, Fred Wayne Horn, was convicted of the following offences: Touching the complainant, a person under the age of 16 years, for a sexual purpose ( s. 151 (

a) of the Criminal Code ), and

Inciting the complainant to touch him for a sexual purpose (s. 152(a)). [ 2 ] The appellant was sentenced to a period of incarceration of eight years, less credit for time spent in remand, resulting in a sentence of seven years and five months. He now appeals his conviction and asks the Court to allow the appeal, quash the conviction, and enter a stay of proceedings. In the alternative, he asks the Court to order a new trial. For the reasons set out below, I would dismiss the appeal. II. Background [ 3 ] The complainant is a young girl who was eight years old at the time of trial.

At all times relevant to this matter, her mother and the appellant were involved in a romantic relationship. [ 4 ] Beginning when she was approximately five years of age, and continuing until she was approximately seven, the complainant was the victim of sexual abuse at the hands of the appellant, summarized at the time of sentencing by the trial judge as follows: “anal penetration, licking her vagina, her anus and breasts, and having her masturbate him and viewing porn.” [ 5 ] These incidents came to light when the complainant spoke to her mother about an irritation in her vaginal area and disclosed that it was caused by the appellant.

The ensuing police investigation led to the appellant being charged. [ 6 ] At trial, the complainant, her mother, and the appellant all testified. The appellant put forward a version of events in which he was the actual victim, and the complainant was in fact the sexual aggressor. The trial judge rejected the appellant’s testimony, finding it “simply not believable and unfounded” (decision, page 37). He found both the complainant and her mother credible and accepted their evidence.

With respect to the complainant, the trial judge “found her testimony convincing and that she really experienced these incidents” and “found her to be reliable, to be a reliable and credible witness on the core evidence” (decision, page 45). Finally, the trial judge concluded the Crown had discharged its burden and proven the case against the appellant beyond a reasonable doubt, and therefore found the appellant guilty. III. Preliminary Motion [ 7 ] By Notice of Motion, the appellant seeks the following: 1.

An order granting him leave to file a Second Amended Notice of Appeal […] and an extension of time for filing same pursuant to Rule 63.04(2); and 2. An order granting him leave to adduce fresh evidence for use upon his appeal pursuant to section 684(1) (

d) of the Criminal Code of Canada . A. Motion to amend the Notice of Appeal [ 8 ] In the recent decision of Smith-Kingsley v. R ., 2021 NBCA 51 , Drapeau J.A., writing for the Court, explains what is required of an appellant in order to amend a Notice of Appeal: Rule 63.04(2) of the Rules of Court prescribes a 30-day limitation period for the issuance of a Notice of Appeal. However, that time may be extended by an order of the Court or one of its judges. I would extend the time to appeal with respect to the conviction for breach of

the Non-Communication Order. Rule 63.04(3) provides a Notice of Appeal must state the relief sought and the grounds of appeal. If anappellant wishes to expand the relief sought or press additional grounds, he or she needs leave of the Court. Where granting leave willserve the interests of justice, the Court will not hesitate to give its stamp of approval. [para. 16] [9] In keeping with the above, I would grant the appellant leave to file a Second Amended Noticeof Appeal. B.

Motion to adduce fresh evidence [10] As a result of the appellant’s motion for leave to adduce fresh evidence, four affidavits havebeen placed before the Court. Three have been proffered by the appellant, and the fourth is an affidavit from the appellant’s trial counselin response to his allegation of ineffective assistance of counsel at trial.

The appellant further seeks to adduce as fresh evidence thetranscripts of appearances made by his trial counsel before the Provincial Court on November 16, 2018, and November 19, 2018. [11] The Supreme Court provided direction to appellate courts on the question of when to allow amotion for fresh evidence in R. v. Stolar, (SCC), [1988] 1 S.C.R. 480, [1988] S.C.J.

No. 20 (QL), wherein McIntyre J.stated: The procedure which should be followed when an application is made to the Court of Appeal for the admission of fresh evidence is thatthe motion should be heard and, if not dismissed, judgment should be reserved and the appeal heard. In this way, the Court of Appeal hasthe opportunity to consider the question of fresh evidence against the whole background of the case and all the other evidence in thecase. It is then in a position where it can decide realistically whether the proffered evidence could reasonably have been expected toaffect the result of the case.

If, then, having heard the appeal, the court should be of the opinion that the evidence could not reasonablyhave affected the result, it would dismiss the application for the introduction of fresh evidence and proceed to a disposition of the appeal.[…]. [para. 14] [12] In the present case, that is precisely the path we followed. The Court heard the motion for freshevidence, reserved judgment, and proceeded to hear the appeal proper. C. Fresh evidence – affidavit of the appellant’s son [13] The appellant’s adult son executed an affidavit on January 22, 2021.

The appellant seeks toadduce the affidavit as fresh evidence in support of his allegation of ineffective assistance of counsel at trial. The content of the affidavitconsists primarily of a description of the friendly relationship between the affiant and the complainant’s mother and focusses on adiscussion between the two that purportedly took place in November or December 2017. The son alleges he related the contents of thisdiscussion to the appellant’s trial counsel with the hope of being called to testify in his father’s defence.

He was not called. [14] In my opinion, the affidavit of the appellant’s son constitutes inadmissible hearsay, and I wouldnot admit it into evidence. Furthermore, the central allegation contained in the affidavit was the subject of testimony at trial by both thecomplainant and her mother. Both explicitly denied the truth of the allegation. D. Fresh evidence – affidavit of J. Gilles Lemieux [15] The appellant also seeks to introduce the affidavit of J. Gilles Lemieux, a long-standing memberof the New Brunswick bar who practices law with the appellant’s counsel on appeal. In his affidavit, Mr.

Lemieux chronicled hisinvolvement with the appellant’s file, and in particular related the following: I am aware this Honourable Court will require the Transcripts in this matter in order to determine the issues raised by the evidence.However, not having received them for the reasons provided; and not having received the audio recordings either; and with theAppellant not having been personally present for the court appearances in question, due to the court-ordered deadline within the next 7days, the Appellant is left with no choice but to present what appears to have happened during those court appearances by relaying the

contents of those hearings in this affidavit in support of his request for an extension of time to obtain the CD containing the audio recordings and the Transcripts. Mr. Lemieux then proceeded to depose, “I personally listened to the audio recordings” and set out in

summary the contents of those recordings. [ 16 ] The credibility of Mr. Lemieux as affiant is not in issue whatsoever, and I acknowledge the rationale behind his efforts and the resulting affidavit, the purpose of which was to provide context for the appellant’s arguments relating to the Provincial Court’s potential loss of jurisdiction in this case. With respect, however, I would not accept his affidavit as fresh evidence as I question its relevance. In my opinion, the record before the Court provides us with all that is required in order to adjudicate and determine the appeal.

I note in particular the inclusion in the Amended Appeal Book of the transcripts of the appearances by the appellant’s trial counsel before the Provincial Court on November 16, 2018, and November 19, 2018. Rule 63.10 of the Rules of Court sets out the documents that are to be included in the Appeal Book for a criminal appeal. This includes “a copy of any other relevant decision or ruling of the trial judge that is not included in the transcript,” as prescribed by Rule 63.10(1)(f).

I surmise this was the basis upon which the two transcripts in question were added to the Appeal Book, as they deal with the waiver of the preliminary inquiry and the re-election to Provincial Court. Whatever the basis for their inclusion, the transcripts form part of the record and are before the Court. E. Fresh evidence – affidavit of the appellant [ 17 ] In his affidavit, the appellant sets out the basis of his claim he received the ineffective assistance of counsel prior to and during his trial.

I would highlight the following from that affidavit: […] On May 28, I appeared with my counsel, at which time [she] elected Court of Queen’s Bench with Judge and Jury and requested a preliminary inquiry. Prior to doing so, [she] did not discuss with me the various options and the reasons for making said election and requesting a preliminary inquiry, nor did she request or obtain my instructions.

I met with [my counsel] summer 2018, I believe it was approximately June 2018, at which time I recall we observed the video statement/interviews made by the complainant’s mother and the complainant. [She] did not stop the videos at any point to discuss anything with me. We did not speak about the content of the videos we watched, or about the law, court procedure or what to expect going forward. [She] did not ask me any questions about the contents of what we watched, nor did she prepare me for any future court proceedings.

We did not talk about my testimony either. […] [My counsel] did not discuss with me waiving the preliminary inquiry or re-election to Provincial Court. [She] did not provide me information or legal advice, nor did she request or obtain instructions from me on this subject.

If [my counsel] waived my preliminary inquiry on November 16, 2018 as indicated in the endorsement for that date, she did so without my knowledge, understanding, consent and instructions. […] If [my counsel] entered a re-election to Provincial Court on my behalf on November 19, 2018 as indicated in the endorsement for that date, she did so without my knowledge, understanding, consent and instructions. […] At one point, I was offered a polygraph.

I liked this idea because I felt it would be an opportunity to clear my name. [My counsel] was aware of the polygraph and that I was interested in taking it, however she did not at any time provide me with legal advice about the process and/or warn me about the potential consequences. For example, [she] did not advise me that the interviews and answers to the questions associated with the polygraph testing were admissible in my trial. We really did not speak about the polygraph at all. I was unaware that this resulted in me making a statement that could be used against me in my trial.

If I had known, I would have been better prepared to make different choices and protect myself.

Outside of early court appearances where we simply requested adjournments and did not yet have disclosure, I met with [my counsel] a total of 2 times prior to my trial. One of those times was when we viewed the videos referenced above. The other time was for approximately 5 minutes on the date of my trial in the little side room at court before the trial began. [She] essentially only asked me if I had anything I wished to say or if there were any questions I wished her to ask Crown witnesses. At no time did we prepare in any way for my trial. We did not discuss procedure, nor did we discuss my testimony.

I had witnesses that I wished to present at my trial, but [my counsel] did not seem interested in those people and what they might have to say. One of them, my son […], had information from a discussion with the complainant’s mother […] a Crown witness, in which [she] would have told [my son] that her daughter, the complainant […], had lied on a previous occasion when she accused me of sexual abuse against her. I believed this to be very relevant for my trial. […] During my trial, [my counsel] spent very little time cross-examining the complainant’s mother […].

She appeared ill-prepared, disorganized, and it was confusing. I believe my defence counsel could have and should have questioned this witness closely on timeframes as [her] direct testimony had been imprecise or contradictory in areas, especially the details of our relationship and when the children were actually in her care, as opposed to being in foster care. […] [My counsel] also spent very little time cross-examining the complainant […].

I have looked at the transcript, and the cross-examination of this witness takes up less than a total of 7 pages of the transcript dated March 13, 2019. […] Again, [she] appeared ill-prepared, disorganized, and it was confusing. […] Although my trial was then adjourned to April 1, 2019 for the preparation of my defence, I did not meet with [my counsel] prior to that date or prepare prior to my testimony nor did we discuss my witnesses and their potential evidence […].

Since I was not prepared in advance of testifying, I feel this had a real impact on my choice to testify or not, how I presented myself and the evidence I gave. […] F. Fresh evidence – affidavit of counsel at trial [ 18 ] In a thorough and clearly stated affidavit, the appellant’s trial counsel chronicled her representation of the appellant, and addressed the points made in his affidavit outlining her supposed ineffectiveness.

In reviewing counsel’s affidavit, I note in particular the following passages: Lack of Preparation I met with the appellant on several occasions in my office and we reviewed the disclosure together; I advised him throughout our solicitor-client relationship regarding the strengths and weaknesses of the case against him in accordance with the evidence in the disclosure, the information provided to me by himself and others and the applicable laws and legal principles. […] In total, I spent approximately 87 hours on Mr. Horn’s case.

I provided the appellant with early resolution offers from the Crown and advised him accordingly. […] After he reviewed the forensic interview of the child with a social worker from Social Development, I was instructed by the appellant to negotiate with the Crown regarding settlement of this matter and did so on several occasions providing him with the offers. […] He was offered three-years’ incarceration on a joint submission. At the last minute, the appellant refused the offer.

The appellant’s defence was effectively that he did not do it and he put the blame on the child as initiating contact between the two of them. The appellant wanted to put his “good character” into evidence. He was explained that putting his good character at issue would open the door to the Crown to rebut that evidence and that the case was ripe with the potential for rebuttal evidence. […] The appellant was adamant that he had a good reputation and had never touched his own children and wanted to put his good character into evidence.

I advised him that in the normal course of preparing for trial, I meet with witnesses in my office and interview them. I suggested he speak with any witnesses, including his children, and I would like to have them call me to set up appointments. I did not receive any calls from any of his witnesses nor did he pursue this subject with me. [Appellant’s Son] […] The first time I spoke with [the appellant’s son] was on the morning of the trial on March 13, 2019. I spoke with [him] and he did not have any evidence to warrant putting him on the stand. [He] appeared to be fearful and was very shy.

He told me that he did not want to testify, and I did not force him to do so. I informed the appellant that his son did not want to take the stand and the appellant took no issue with it. I am ethically obligated not to present evidence that I don’t believe is credible. I had concerns that [the appellant’s son] was being pressured by his father to testify; I found him to lack maturity and was not willing to pressure him to take the stand and potentially undermine the trial process. Lack of Cross-Examination During the trial, the child’s viva voce evidence was very consistent with her previous recorded statement.

She was a detailed and convincing witness. There were a number of problematic statements that the child made, such as the moving target as to the number of incidents, which I chose to bring up in closing argument rather than have the child potentially give an explanation. I would note that prior to completing my cross-examination, I asked for a short recess to confer with my client to see if he had any further

questions he wanted me to ask; I continued my cross-examination after the recess. It is my experience that most judges sitting in Moncton provincial court do not approve of stringent cross-examination of child witnesses simply for the sake of asking questions. […] As to his testimony, the appellant and I met to discuss his testimony prior to trial. I made sure to advise the appellant of the importance of reviewing his statement as any inconsistencies would be pointed out on cross-examination to undermine his credibility.

It is not my practice to do a full run through when I am calling a witness as I do not want a witness to appear “rehearsed.” The appellant was aware of the ground to be covered during this testimony. Polygraph Test The appellant had indicated to the RCMP that he was willing to take a polygraph test. Shortly before the preliminary inquiry, the Crown offered to withdraw the charges if he passed the polygraph test. The appellant came to my office on October 25, 2018 and thought that he would be able to “beat” the polygraph test. I advised him of the law surrounding polygraph tests and that only an opinion as to the

interpretation of the result was not admissible in the court but that anything else he said could be. I advised him that the RCMP were looking at obtaining a confession from him in that process and not to exonerate him. I advised him that he could not “beat” the polygraph test. He was sure he could and he decided to take the test. […] Mr. Horn took the polygraph examination and he failed the test; he was again offered to settle prior to trial and he declined the offer.

Election and Re-election The appellant and I discussed the value of electing a trial by judge and jury with a preliminary inquiry as the key issue in the case was credibility and he was likely to testify. The appellant was present for his election and the setting of the preliminary inquiry. While I do not specifically recall doing so in this case, it is my normal practice to provide my clients a card with the date of their next appearance. Either way, the appellant was present when the date for the preliminary inquiry was set.

After further review of the child’s recorded statement, I had concerns that the jury might believe the child and the appellant might benefit more from a trial in provincial court with a judge alone that is able to apply the legal test as to credibility even in the face of serious accusations by a child. The appellant and I discussed re-election down to provincial court. At our meeting on October 25, 2018, we met to discuss the preliminary inquiry in addition to our discussion about the polygraph test. The appellant was aware of the date of the preliminary inquiry.

The appellant gave me specific instructions to re-elect down to provincial court. […]

November 16, 2018 was the date set for the preliminary inquiry; the appellant did not appear. I do not know why he did not appear. I called the appellant and he did not really explain why he couldn’t come. As the plan for that day was to re-elect, I asked that a warrant be held in the file. The matter was set over to Monday, November 19, 2018 at 1:30 pm. […] November 16, 2018 was a Friday. I specifically recall telling the appellant that he had to be in court on Monday November 19 at 1:30 pm or he would be arrested [emphasis in original]. […] On Monday, November 19, 2018, the appellant was not present.

The presiding judge proceeded to set a date for trial without the accused being present, without a designation or objection from the Crown. […] I conducted the appellant’s trial to the best of my abilities and knowledge as it is expected in the normal course of duties as a lawyer and as an officer of the court. The appellant, from the beginning of the solicitor-client relationship to the end of the relationship, never indicated to me that he was dissatisfied with my services to him.

All indications to me were that we were conducting his case in the way he was instructing me. […] [ 19 ] I will address whether or not I would admit the affidavits of the appellant and his trial counsel below in my consideration of the ineffective assistance of counsel ground of appeal. IV. Issues and Analysis A.

Issues on appeal [ 20 ] The Second Amended Notice of Appeal sets out four distinct grounds of appeal as follows: 1) The appellant is the victim of a miscarriage of justice resulting from having received ineffective assistance of counsel at trial, […] rising to the level of incompetence and leading to the appellant’s conviction, in violation of the principles of fundamental justice and legal rights guaranteed by sections 7 , 11(

d) and 11(

f) of the Canadian Charter of Rights and Freedoms . 2) The learned trial Judge erred in law when he proceeded with the trial of the accused, the Provincial Court having lost jurisdiction over the accused on or about November 19, 2018, in accordance with subsection 485(1.1) of the Criminal Code of Canada , and not having regained jurisdiction over the accused within three months after said loss of jurisdiction in accordance with subsection 485(2) of the Criminal Code of Canada ; and whereas no summons or warrant was issued under subsection 485(2) within the three month period after the Provincial Court lost jurisdiction, the proceedings against the accused were deemed dismissed for want of prosecution in accordance with subsection 485(3) of the Criminal Code of Canada and were not recommenced thereafter in accordance with

section 485.1 of the Criminal Code of Canada . As a result, the Appellant’s trial was a nullity, along with everything flowing therefrom, including his convictions, sentence, and subsequent incarceration.

3) The Honourable Provincial Court Judge sitting on November 16, 2018 erred in law when he permitted defense counsel […] to change the mode of trial from superior court judge and jury with a preliminary inquiry to waiving the preliminary inquiry in the absence of the defendant or a written document signed by him designating counsel […] to appear in his stead and in his absence and granting defense counsel the power and authority to waive the preliminary inquiry the defendant was entitled to and had chosen, in violation of sections 536.2 , 650 and 650.01 of the Criminal Code of Canada , thereby depriving the appellant of his right to a preliminary inquiry as had been consistent with his election before the Provincial Court on May 28, 2018. [Counsel] waived the defendant’s preliminary inquiry on November 16, 2018, without the defendant having instructed her or granted her the authority to do so.

Neither the Prosecutor nor the Provincial Court Judge inquired into the authority of defense counsel to do so, thereby depriving the appellant of his right to the mode of trial he had previously elected, which was trial by judge and jury with a preliminary inquiry. 4) The Honourable Provincial Court Judge sitting on November 19, 2018 erred in law when he accepted defense counsel […]’s purported re-election to Provincial Court on behalf of the defendant in the absence of the defendant or a written document signed by him designating counsel […] to appear in his stead and granting defense counsel the power and authority to re-elect from superior court judge and jury to provincial court in the defendant’s absence, in violation of sections 536.2 , 650 and 650.01 of the Criminal Code of Canada , thereby depriving the appellant of his constitutional right to a trial by jury as guaranteed by subsection 1 l(

f) of the Canadian Charter of Rights and Freedoms and as had been consistent with the appellant’s election before the Provincial Court on May 28, 2018. […] re- elected to Provincial Court on November 19, 2018, without the defendant having instructed her or granted her the authority to do so and neither the Prosecutor nor the Provincial Court Judge inquired into the authority of defense counsel to do so, thereby violating the appellant’s right to a trial by jury as guaranteed by subsection 11(

f) of the Canadian Charter of Rights and Freedoms .

(1) Issue 1 – Ineffective assistance of counsel [ 21 ] Our court recently considered how to adjudicate an allegation of ineffective assistance of counsel in Smith-Kingsley . Drapeau J.A., writing for the Court, provides a thorough overview of the principles to be considered: The law on counsel ineffectiveness as a basis for appellate intervention is settled, at least for our present purposes.

I distill the following principles from the jurisprudence emanating from the Supreme Court of Canada and this Court: (1) the appellant bears the burden of demonstrating defence counsel’s performance was incompetent in material respects (the performance component). This condition is 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) the appellant also bears the burden of demonstrating a miscarriage of justice occurred as a result of counsel’s incompetence (the prejudice component); (3) a miscarriage of justice may take many forms, including procedural unfairness or verdict unreliability.

A verdict will be deemed unreliable where the Court concludes it may have been different had counsel acted competently; (4) in assessing an allegation of ineffectiveness, the Court must bear in mind the presumption of professional competence will stand unrebutted absent compelling evidence of malpractice. Relatedly, and in the absence of evidence of that nature, the Court must abstain from second-guessing defence counsel’s strategic decisions; and (5) trial counsel is expected to provide the Court with a fulsome 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. [para. 22] [ 22 ] I have carefully reviewed the allegations contained within the appellant’s affidavit and weighed them against the affidavit filed by his trial counsel. In my opinion, trial counsel has effectively dealt with the various accusations levelled against her. The appellant has not met the burden set out in Smith-Kingsley . I am not persuaded trial counsel’s representation was incompetent, either in preparation for or in the conduct of the appellant’s defence.

I say this mindful of the fact that the appellant’s counsel did unnecessarily complicate this case through certain procedural missteps in advance of the trial itself. These will be discussed below. However, I do not believe the allegation of ineffective assistance of counsel has been made out and will briefly elaborate on some of the points of contention between the appellant and trial counsel, that led me to that conclusion. [ 23 ] As to the amount of time the appellant’s counsel spent on his case, it is not merely her bald assertion that it was approximately 87 hours.

Attached to her affidavit were time sheets from her employer, the New Brunswick Legal Aid Services Commission. [ 24 ] The appellant’s affidavit is silent on the meeting with his trial counsel on October 25, 2018, a meeting his counsel describes in detail as to their discussions on the advisability of taking a polygraph test.

The appellant, however, alleges, “We really did not speak about the polygraph at all.” A series of emails between trial counsel and the Crown dated October 25, 2018, concerning the possibility of the appellant submitting to a polygraph test contains this specific statement by trial counsel: “Mr. Horn is in my office and is agreeable to the take the polygraph.” An earlier message from trial counsel to the Crown reads, [TRANSLATION] “I have just communicated with Mr. Horn. I asked him to come to my office late this afternoon or tomorrow morning to inform him of the offer to take a polygraph.”

[ 25 ] It is entirely factual to point out that the appellant’s trial counsel did not extensively cross- examine the complainant, who was eight years of age at the time of trial. The appellant holds this up as one example of the alleged ineffective assistance of counsel. With respect, the problem for the appellant was not his counsel’s cross-examination; the problem was the testimony of the complainant and her mother.

For example, in direct examination, the complainant was asked, “So what did [the appellant] do that he said to keep that a secret?” Her response: “Basically he raped me.” [ 26 ] On the subject of the complainant having lied previously about inappropriate behaviour by the appellant, the following exchange took place: Q. Did you ever tell your mum that you had lied about Wayne, about what he had done? Did you ever tell mummy about that? A. I never lied. Q. Did you ever tell mum that you had lied? A. No. [ 27 ] Earlier in the trial, the complainant’s mother was cross-examined on the same issue: Q. Okay.

So tell me about the time that she told you that she had lied about – that Wayne had done something to her because she was mad. So just tell me about that. A. I have no idea what you’re talking about. Q. That she had told you that she had lied. A. I don’t recall. Q. You don’t recall? A. I don’t recall. Q. Okay. You don’t recall telling other people that [the complainant] had told you that she lied? A. No. I – [the complainant] has never said anything about lying about what Wayne did to her. Q. Did you – do you know who [the accused’s son] is? A. Yup. Q. Okay.

Did you not tell him that [the complainant] had told you –

A. Never ever. Q. That she had lied. A. Nope. […] Q. So you agree with me that [the complainant] used to be quite elaborate with her story telling? A. No. Oh my [other daughter] definitely. She’s a story teller. Q. Okay. A. But [the complainant] no. [She] is not a liar. I don’t know if you heard my statement, but in my statement, I actually say that, you know, if my [other daughter] would have come to me and said Wayne was doing this to her, I would question it. I would question if [she’s] telling the truth or not.

But because it was [the complainant], I spent an entire week trying to find one way to make it so that I hadn’t to share a bed with a pedophile for four years, that I didn’t put my kid in that situation, and I – I wish – I would love to find just one way to prove my daughter’s lying cause there isn’t one. [ 28 ] At the risk of understating the situation, it seems unlikely that extensive cross-examination of either the complainant or her mother would have helped the appellant’s cause. [ 29 ] The words of Drapeau J.A. in Smith-Kingsley are equally appropriate in the present case.

There is no reasonable possibility the proffered evidence might change the outcome of this appeal. The allegations of ineffective counsel either have been satisfactorily addressed by trial counsel or are at odds with the record, or both. No useful purpose would be served by accepting the affidavit of the appellant, which means the affidavit of his trial counsel is not required either. I would dismiss the motion to adduce fresh evidence in its entirety. It follows that I would also reject this ground of appeal.

(2) Issue 2 – Loss of jurisdiction by Provincial Court in November 2018 [ 30 ]

Section 485 of the Criminal Code deals with procedural irregularities:

Procedural irregularities 485

(1) Jurisdiction over an offence is not lost by reason of the failure of any court, judge, provincial court judge or justice to act in the exercise of that jurisdiction at any particular time, or by reason of a failure to comply with any of the provisions of this Act respecting adjournments or remands.

(1.1) Jurisdiction over an accused is not lost by reason of the failure of the accused to appear personally, so long as the provisions of this Act or a rule made under

section 482 or 482.1 permitting the accused not to appear personally apply.

(2) Where jurisdiction over an accused or a defendant is lost and has not been regained, a court, judge, provincial court judge or justice may, within three months after the loss of jurisdiction, issue a summons, or if it or he considers it necessary in the public interest, a warrant for the arrest of the accused or defendant.

(3) Where no summons or warrant is issued under subsection (2) within the period provided therein, the proceedings shall be deemed to be dismissed for want of prosecution and shall not be recommenced except in accordance with

section 485.1.

(4) Where, in the opinion of the court, judge, provincial court judge or justice, an accused or a defendant who appears at a proceeding has been misled or prejudiced by reason of any matter referred to in subsection (1), the court, judge, provincial court judge or justice may adjourn the proceeding and may make such order as it or he considers appropriate.

(5) The provisions of

Part XVI apply with such modifications as the circumstances require where a summons or warrant is issued under subsection (2). Irrégularités de procédure 485

(1) La compétence d’un tribunal, d’un juge, d’un juge de la cour provinciale ou d’un juge de paix à l’égard d’une infraction n’est pas atteinte par le défaut d’exercice de sa compétence ou du fait que certaines exigences en matière d’ajournement ou de remise n’ont pas été observées.

(1.1) Le tribunal ne perd pas sa compétence à l’égard de l’accusé qui omet de comparaître en personne pour autant que s’appliquent les dispositions de la présente loi — ou une règle établie en vertu des articles 482 ou 482.1 — lui permettant de ne pas comparaître en personne.

(2) Lorsque la compétence à l’égard d’un accusé ou d’un défendeur a été perdue, et n’a pas été recouvrée, le tribunal, le juge, le juge de paix ou le juge de la cour provinciale peut dans les trois mois de la perte de compétence décerner une sommation ou, s’il le juge nécessaire dans l’intérêt public, un mandat d’arrestation visant l’accusé ou le défendeur.

(3) Les procédures sont réputées rejetées pour défaut de poursuite et ne peuvent être reprises sauf en application de l’article 485.1 lorsque aucune sommation ou aucun mandat n’est décerné dans la période visée au paragraphe (2).

(4) Si le tribunal, le juge, le juge de la cour provinciale ou le juge de paix estime qu’un prévenu ou un défendeur qui comparaît a été trompé ou a subi un préjudice en raison de l’une des irrégularités visées au paragraphe (1), il peut ajourner les procédures et rendre l’ordonnance qu’il juge à propos.

(5) Les dispositions de la

partie XVI s’appliquent, compte tenu des adaptations de circonstance, aux sommations et mandats décernés en vertu du paragraphe (2). [ 31 ] The appellant argues that the Provincial Court lost jurisdiction over his case on November 19, 2018, and pursuant to s. 485(3) , permanently lost jurisdiction three months later, citing R. v. Clark , 2011 NBQB 6 , [2011] N.B.J. No. 1 (QL) . The Crown concedes this point and agrees that jurisdiction was in fact lost. With respect, I would reject the Crown’s concession. Jurisdiction was not lost.

[ 32 ] The appellant had two scheduled court appearances in November 2018, on the 16 th and again on the 19 th . I will delve into these appearances under my consideration of issues three and four (waiver and re-election). For our present purposes, suffice to say that the appellant was to appear in Provincial Court on November 16, 2018, and failed to do so. The matter was set over to November 19. At the request of the Crown, a warrant was issued for the appellant’s arrest, and was to be kept in the file in anticipation of the appellant being in court on the 19 th . The judge’s endorsement clearly indicates “warrant for file.” The appellant did not in fact appear on November 19. [ 33 ]

Section 511 of the Criminal Code sets out the contents of a warrant to arrest and, importantly for our purposes, how a warrant is to be executed: Contents of warrant to arrest 511

(1) A warrant issued under this Part shall (

a) name or describe the accused; (

b) set out briefly the offence in respect of which the accused is charged; and (

c) order that the accused be forthwith arrested and brought before the judge or justice who issued the warrant or before some other judge or justice having jurisdiction in the same territorial division, to be dealt with according to law.

(2) A warrant issued under this Part remains in force until it is executed and need not be made returnable at any particular time.

(3) Notwithstanding paragraph (1)(c), a judge or justice who issues a warrant may specify in the warrant the period before which the warrant shall not be executed, to allow the accused to appear voluntarily before a judge or justice having jurisdiction in the territorial division in which the warrant was issued.

(4) Where the accused appears voluntarily for the offence in respect of which the accused is charged, the warrant is deemed to be executed. Contenu du mandat d’arrestation 511

(1) Un mandat décerné en vertu de la présente

partie :

a) nomme ou décrit le prévenu;

b) indique brièvement l’infraction dont le prévenu est inculpé;

c) ordonne que le prévenu soit immédiatement arrêté et amené devant le juge ou juge de paix qui a décerné le mandat ou devant un autre juge ou juge de paix ayant juridiction dans la même circonscription territoriale, pour y être traité selon la loi.

(2) Un mandat décerné en vertu de la présente

partie demeure en vigueur jusqu’à ce qu’il soit exécuté, et il n’est pas nécessaire d’en fixer le rapport à une date particulière.

(3) Par dérogation à l’alinéa (1)c), le juge ou le juge de paix qui décerne le mandat peut y indiquer une période pendant laquelle l’exécution du mandat est suspendue pour permettre à l’accusé de comparaître volontairement devant un juge ou un juge de paix ayant compétence dans la circonscription territoriale où le mandat a été décerné.

(4) Si le prévenu visé par le mandat comparaît volontairement, le mandat est réputé avoir été exécuté. [ 34 ] The wording of s. 511(2) is clear: a warrant remains in force until it is executed. In the present case, the warrant issued on November 16, 2018, was not executed.

When the appellant failed to appear in court on November 19, 2018, the presiding Provincial Court judge purported to vacate the warrant issued three days earlier by a different judge, simply stating, “so we’ll vacate the warrant.” On the reverse of the Information is the judge’s notation “w. vacated.” The pertinent question is this: when was the warrant executed? In my opinion, there was no authority to vacate the warrant. The accused had failed to appear, and the warrant remained in force.

Subsection 485(3) states that “Where no summons or warrant is issued […] within [three months], the proceedings shall be deemed to be dismissed for want of prosecution.” In this case, a warrant was issued, and it was in force until executed when the

appellant next appeared in court. Accordingly, I would dismiss this ground of appeal.

(3) Issues 3 and 4 – Waiver of preliminary inquiry and re-election of mode of trial [ 35 ] On April 30, 2018, the appellant was present in the courtroom when his counsel requested an adjournment in order for her to secure an amendment to the Legal Aid certificate that would allow her to act on his behalf in a trial by judge and jury with a preliminary inquiry. The case was adjourned to May 28, 2018. All of this is confirmed by the hand-written endorsement of the Provincial Court judge. [ 36 ] As indicated, the matter returned to the Provincial Court on May 28, 2018.

Again, the appellant was present, and his counsel informed the court he was electing to be tried by judge and jury with a preliminary inquiry. November 16, 2018, was set for the preliminary inquiry. As of that moment, therefore, the appellant was aware of the following: he had elected to be tried by judge and jury, with a preliminary inquiry, and he knew the date and time of his preliminary inquiry. [ 37 ] The appellant’s counsel was present in court on November 16, 2018, for the preliminary inquiry, but the appellant was not. Despite her client’s absence, the appellant’s counsel waived the preliminary inquiry.

The court was informed of a possible re-election from trial by judge and jury to judge alone in Provincial Court. Given that the appellant had not appeared, as discussed earlier, a warrant was issued for his arrest and placed in the file at the request of the Crown. The transcript clearly discloses that the matter was adjourned to Monday, November 19, 2018, at 1:30 p.m. The judge asked, “Is it the twentieth?” The court stenographer replied, “Nineteenth.” Although he noted the 20 th on the endorsement, the judge then said, “Nineteenth.

Warrant of arrest will be kept on file and note that the defense is waiving preliminary. Warrant to be kept on file and there’s a possible re-election on Monday as well.” There could be no doubt in the mind of anyone present that the matter was set to resume on the following Monday afternoon, which would have been November 19 (the appellant later claimed he was told to appear on the 20 th ). [ 38 ] When the matter did resume on the 19 th , the appellant was once again missing from the courtroom. His counsel confirmed the waiver of the preliminary inquiry.

In answer to the judge’s question “So, what do you intend to do with this?,” counsel responded, “This is to

schedule a trial date with Provincial Court now.” The judge asked, “had he re-elected?” Counsel replied, “There’s a notice of re-election that will be filed with the Court of Queen’s Bench.” “So, you’ve re-elected to Provincial Court?” “Yes, Your Honour.” After some discussion, a trial date was set for March 13, 2019. [ 39 ] As will be seen below, what transpired over the course of these two appearances should not have happened. B. Procedure for re-election [ 40 ] The proper procedure for an accused who wishes to re-elect his or her mode of trial is set out in s. 561 of the Criminal Code : Right to re-elect 561

(1) An accused who elects or is deemed to have elected a mode of trial other than trial by a provincial court judge may re-elect, (

a) if the accused is charged with an offence for which a preliminary inquiry has been requested under subsection 536(4), Droit à un nouveau choix 561

(1) Un prévenu qui a choisi ou qui est réputé avoir choisi d’être jugé autrement que par un juge de la cour provinciale peut choisir :

a) dans le cas où il est accusé d’une infraction pour laquelle une enquête préliminaire a été demandée au

titre du paragraphe 536(4) : (

i) à tout moment avant ou après la fin de son

(

i) at any time before or after the completion of the preliminary inquiry, with the written consent of the prosecutor, to be tried by a provincial court judge, (ii) at any time before the completion of the preliminary inquiry or before the 60th day following the completion of the preliminary inquiry, as of right, another mode of trial other than trial by a provincial court judge, and (iii) on or after the 60th day following the completion of the preliminary inquiry, any mode of trial with the written consent of the prosecutor; or (

b) if the accused is charged with an offence for which they are not entitled to request a preliminary inquiry or if they did not request a preliminary inquiry under subsection 536(4), (

i) as of right, not later than 60 days before the day first appointed for the trial, another mode of trial other than trial by a provincial court judge, or (ii) any mode of trial with the written consent of the prosecutor.

(2) An accused who elects to be tried by a provincial court judge may, not later than 60 days before the day first appointed for the trial, re-elect as of right another mode of trial, and may do so after that time with the written consent of the prosecutor.

(3) If an accused intends to re-elect under paragraph (1)(

a) before the completion of the preliminary inquiry, they shall give notice in writing of their intention to re-elect, together with the written consent of the prosecutor, if that consent is required, to the justice presiding at the preliminary inquiry who shall on receipt of the notice, (

a) in the case of a re-election under subparagraph (1)(a)(ii), put the accused to their re-election in the manner set out in enquête préliminaire avec le consentement écrit du poursuivant, d’être jugé par un juge de la cour provinciale, (ii) à tout moment avant la fin de son enquête préliminaire ou avant le soixantième jour suivant celle-ci, de droit, un autre mode de procès qui n’est pas un procès devant un juge de la cour provinciale, (iii) à partir du soixantième jour qui suit la conclusion de son enquête préliminaire, tout mode de procès avec le consentement écrit du poursuivant;

b) dans le cas où il est accusé d’une infraction pour laquelle une telle enquête n’a pas été demandée au

titre du paragraphe 536(4) ou pour laquelle il n’a pas droit de faire une telle demande : (

i) de droit, au plus tard soixante jours avant la date fixée pour son procès, un autre mode de procès qui n’est pas un procès devant un juge de la cour provinciale, (ii) tout mode de procès avec le consentement du poursuivant.

(2) Un prévenu qui a choisi d’être jugé par un juge de la cour provinciale peut de droit, au plus tard soixante jours avant la date fixée pour son procès, choisir un autre mode de procès; il ne peut par la suite le faire qu’avec le consentement écrit du poursuivant.

(3) S’il a l’intention de faire un nouveau choix en vertu de l’alinéa

(1) a) avant que son enquête préliminaire ne soit terminée, le prévenu doit donner un avis écrit de son intention de faire un nouveau choix accompagné du consentement écrit du poursuivant, lorsqu’un tel consentement est requis, au juge de paix présidant l’enquête préliminaire qui, sur réception de cet avis, peut :

a) dans le cas d’un nouveau choix fait en vertu du sous-alinéa (1)a)(ii), appeler le prévenu à faire son nouveau choix de la manière prévue au paragraphe (7);

b) lorsque le prévenu désire faire un nouveau choix en vertu du sous-alinéa (1)a)(

i) et que le juge de paix n’est pas un juge de la cour provinciale, aviser un juge de la cour

subsection (7); or (

b) if the accused intends to re-elect under subparagraph (1)(a)(

i) and the justice is not a provincial court judge, notify a provincial court judge or clerk of the court of the accused’s intention to re-elect and send to the provincial court judge or clerk any information, appearance notice, undertaking or release order given by or issued to the accused and any evidence taken before a coroner that is in the possession of the justice.

(4) If an accused intends to re-elect under paragraph (1)(

b) or subsection (2), they shall give notice in writing that they intend to re- elect together with the written consent of the prosecutor, if that consent is required, to the provincial court judge before whom the accused appeared and pleaded or to a clerk of the court.

(5) If an accused intends to re-elect under paragraph (1)(

a) after the completion of the preliminary inquiry, they shall give notice in writing, together with the written consent of the prosecutor, if that consent is required, to a judge or clerk of the court of the accused’s original election. The judge or clerk shall, on receipt of the notice, (

a) notify the judge or provincial court judge or clerk of the court by which the accused wishes to be tried of the accused’s intention to re-elect; and (

b) send to that judge or provincial court judge or clerk any information, evidence, exhibits and statement of the accused taken down in writing in accordance with

section 541, any appearance notice, undertaking or release order given by or issued to the accused and any evidence taken before a coroner that is in the possession of the first- mentioned judge or clerk.

(6) Where a provincial court judge or judge or clerk of the court is notified under paragraph (3)(

b) or subsection (4) or (5) that the accused wishes to re-elect, the provincial court judge or judge shall forthwith appoint a time and place for the accused to re-elect and provinciale ou un greffier du tribunal de l’intention du prévenu de faire un nouveau choix, et leur faire parvenir toute dénonciation, citation à comparaître, promesse ou ordonnance de mise en liberté visant le prévenu et preuve recueillie devant un coroner, en sa possession.

(4) S’il a l’intention de faire un nouveau choix en vertu de l’alinéa

(1) b) ou du paragraphe (2), le prévenu doit donner un avis écrit de son intention de ce faire accompagné du consentement écrit du poursuivant, lorsqu’il est requis, au juge de la cour provinciale devant lequel il a comparu ou plaidé, ou au greffier du tribunal.

(5) S’il a l’intention de faire un nouveau choix en vertu de l’alinéa (1)a), une fois son enquête préliminaire terminée, le prévenu doit :

a) donner un avis écrit de son intention de ce faire accompagné du consentement écrit du poursuivant, lorsque ce consentement est requis, à un juge ou un greffier du tribunal de son premier choix, lequel doit alors aviser le juge ou le juge de la cour provinciale ou le greffier du tribunal qui fait l’objet du nouveau choix du prévenu;

b) lui faire parvenir toute dénonciation, preuve, pièce, déclaration du prévenu — consignée par écrit conformément à l’article 541 —, citation à comparaître, promesse ou ordonnance de mise en liberté visant le prévenu et preuve recueillie devant un coroner, en sa possession.

(6) Lorsqu’un juge de la cour provinciale ou un juge ou un greffier du tribunal est avisé en vertu de l’alinéa

(3) b) ou des paragraphes (4) ou (5) que le prévenu désire faire un nouveau choix, le juge de la cour provinciale ou le juge doit immédiatement fixer les date, heure et lieu où le prévenu pourra faire son nouveau choix et doit faire en sorte qu’un avis soit donné au prévenu et au poursuivant.

shall cause notice thereof to be given to the accused and the prosecutor. [ 41 ] Subsection 561(7) requires that the accused be present in court to make his or her re-election: 561(7) The accused shall attend or, if in custody, shall be produced at the time and place appointed under subsection (6) and shall be put to a re-election after (

a) the charge on which the accused has been ordered to stand trial or the indictment, if an indictment has been preferred under

section 566, 574 or 577 or is filed with the court before which the indictment is to be preferred under

section 577, has been read to the accused; or (

b) the information, in the case of a re- election under paragraph (1)(a), before the completion of the preliminary inquiry, or under paragraph (1)(

b) or subsection (2), has been read to the accused. The accused shall be put to their re-election in the following words or in words to the like effect: You have given notice of your intention to re- elect the mode of your trial. You now have the option to do so. How do you intend to re- elect? 561(7) Le prévenu se présente ou, s’il est sous garde, est amené aux date, heure et lieu fixés en vertu du paragraphe (6) et il est appelé à faire son nouveau choix, après que lecture lui a été faite :

a) soit de l’inculpation sur laquelle il a été renvoyé pour subir son procès ou de l’acte d’accusation présenté en vertu des articles 566, 574 ou 577, ou déposé auprès du tribunal devant lequel l’acte d’accusation doit être présenté en vertu de l’article 577;

b) soit de la dénonciation dans le cas d’un nouveau choix fait en vertu de l’alinéa

(1) a) avant que son enquête préliminaire ne soit terminée ou dans le cas d’un nouveau choix fait en vertu de l’alinéa

(1) b) ou du paragraphe (2). Il est appelé à faire son nouveau choix dans les termes suivants ou d’une teneur semblable : Vous avez donné avis de votre intention de faire un nouveau choix. Vous avez maintenant cette possibilité. Comment choisissez-vous d’être jugé? [ 42 ] Obviously, the appellant in this case did not attend in court. There is, however, provision for such a situation in s. 536.2 : Elections and re-elections in writing 536.2 An election or a re-election by an accused in respect of a mode of trial may be made by submission of a document in writing without the personal appearance of the accused.

Choix ou nouveau choix 536.2 Le choix ou le nouveau choix fait par le prévenu quant au mode de procès peut être effectué par écrit sans que celui-ci ait à comparaître. [ 43 ] Regrettably, that provision was not complied with either. In Trites v. R. 2011 NBCA 5 , [2011] N.B.J. No. 12 (QL) , Richard J.A. (as he then was) discusses the re-election process:

The election of one’s mode of trial is a critical part of a criminal proceeding. The right to a trial by judge and jury is enshrined in the Canadian Charter of Rights and Freedoms for cases where the maximum punishment for the offence is imprisonment for five years or more ( s. 11( f ) ). The importance of that right is reflected in the Criminal Code , which provides that if an accused does not elect the mode of trial when put to the election, he or she is deemed to have elected to be tried by a court composed of a judge and jury ( ss. 536(4) and (4.1) and s. 565(1) ( b )).

It is therefore quite understandable that Parliament wanted to ensure that, before an accused waives his or her right to a jury trial, he or she either appears personally before the court or files a document evidencing the waiver. It is only when the election is done by the latter means that the accused need not appear personally, provided he or she has designated counsel, pursuant to s. 650.01 , to appear on his or her behalf.

Section 536 is designed to ensure the court will obtain a clear and unambiguous choice of the accused’s mode of trial. This is why, when the accused is present, the judge must put the election in specified terms: You have the option to elect to be tried by a provincial court judge without a jury and without having had a preliminary inquiry; or you may elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury.

If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried? [s. 536(2)] When there has been compliance with s. 536(2) and an accused elects a mode of trial, there can be no ambiguity as to the choice. Similarly, when a document is submitted setting out the election, there is no ambiguity as to the choice.

It is evident an accused can only proceed under s. 536.2 if represented by counsel. Otherwise, the accused would have to be present in court. Thus, one can safely infer that an accused who will be filing a written document evidencing his or her choice pursuant to s. 536.2 will have received appropriate advice on the available modes of trial. When there has either been personal appearance and compliance with s. 536(2), or the submission of a written document after receipt of legal advice, there is no ambiguity as to the true choice of the accused regarding the mode of trial.

As this case illustrates, an election made by designated counsel, or by counsel acting on behalf of the designated counsel, gives no such comfort. It leaves room for dispute whether or not the accused actually made the choice counsel communicated to the court. Sections 650.01 and s. 536.2 were carefully crafted to avoid such a situation. This is why, in my view, the only

interpretation that harmonizes these components of the 2002 amendments to the Criminal Code and gives full effect to them is the one whereby designated counsel may indeed appear on behalf of an accused for the election of the mode of trial, but the election will then only be valid if it is made by the submission of a document in writing in compliance with s. 536.2 .

Section 650.01 deals with physical presence, not with making a choice or communicating a choice. When it comes to the election, physical presence of the accused is not necessary, but this is so only when the choice is communicated by filing a document personally signed by the accused. [paras. 19-22] [ 44 ] I next turn my attention to s. 650.01 of the Criminal Code :

650.01

(1) An accused may appoint counsel to represent the accused for any proceedings under this Act by filing a designation with the court.

(2) The designation must contain the name and address of the counsel and be signed by the accused and the designated counsel.

(3) If a designation is filed, (

a) the accused may appear by the designated counsel without being present for any part of the proceedings, other than (

i) a part during which oral evidence of a witness is taken, (ii) a part during which jurors are being selected, and (iii) an application for a writ of habeas corpus; (

b) an appearance by the designated counsel is equivalent to the accused’s being present, unless the court orders otherwise; and (

c) a plea of guilty may be made, and a sentence may be pronounced, only if the accused is present, unless the court orders otherwise. 650.01

(1) L’accusé peut désigner un avocat pour le représenter dans le cadre des procédures visées par la présente loi, auquel cas il dépose un document à cet effet auprès du tribunal.

(2) Le document de désignation doit comporter les nom et adresse de l’avocat et être signé par celui-ci et l’accusé.

(3) En cas de dépôt d’un document de désignation :

a) l’accusé peut comparaître par l’intermédiaire de son avocat dans le cadre de toute

partie d’une procédure, à l’exception de celle touchant à la présentation de la preuve testimoniale, à la sélection des membres du jury ou à une demande de bref d’habeas corpus;

b) la comparution par l’avocat vaut comparution par l’accusé, sauf décision contraire du tribunal;

c) un plaidoyer de culpabilité ne peut être fait — et une sentence ne peut être prononcée — en l’absence de l’accusé que si le tribunal l’ordonne. [ 45 ] The problems in the present case continued to mount as, again, the applicable provision was not followed. In Trites , at paragraph 15 , Richard J.A. stated, “I would nevertheless opine that, pursuant to s. 650.01 , it is only the counsel named in the designation who is authorized to appear on behalf of the accused” (emphasis in original).

He went on to explain his rationale: […] In my view, there is only one way to harmonize the provisions of s. 650.01 and s. 536.2 . It is this: when it comes to an election, an accused need not appear personally in court if he or she has filed a Designation of Counsel with the Court and submitted an election- making document in writing. Any other

interpretation of these provisions would be disharmonious for the reasons set out below. [para. 16] And further: In my view, the language of s. 650.01 expresses unambiguously that designated counsel must be specifically identified. An accused will no longer have to be present (except in those instances listed in s. 650.01(3) and when there will be an election that is not to be made in

accordance with s. 536.2) when the accused has appointed counsel to represent him or her by filing a designation with the court statingthe name and address of the counsel. Because this

section is a derogation from the long-established rule that an accused must be presentat every stage of the criminal process, only where such a designation has been filed may the designated counsel appear without thepresence of the accused. [para. 25] [46] The cumulative effect of the above is clear. In the present case, the re-election to ProvincialCourt was defective and therefore invalid. The Crown concedes as much. However, appellate intervention and the allowing of the appealdo not flow automatically. We must first consider the question of waiver. [47] In Korponay v.

Attorney General of Canada, (SCC), [1982] 1 S.C.R. 41, [1982]S.C.J.

No. 111 (QL), the Supreme Court makes clear that: Some procedural requirements are enacted for the protection of the rights of one of the parties, Crown and accused, and others for both.A party may waive a procedural requirement enacted for his benefit, the concurrence of both being required when enacted for both.Generally speaking, the right to waive that type of procedural requirement has been recognized by all the courts, including this Court, andhas been recently reaffirmed by this Court’s decision as regards the waiver of a voir dire into the circumstances surrounding the giving ofa statement by an accused to a person in authority (see Park v.

The Queen, (SCC), [1981] 2 S.C.R. 64). Paramount tosuch a right is that of the trial judge to require compliance notwithstanding a desire to waive, he being the ultimate judge of whatprocedural safeguards need nevertheless be respected in order to protect the certainty and the integrity of the judicial process. [p. 48] [48] It is established, therefore, that an accused “may waive a procedural requirement enacted for hisbenefit.” As determined by Drapeau C.J.N.B. (as he then was) in Albert v.

R., 2014 NBCA 27, 419 N.B.R. (2d) 307, “non-compliancewith the requirements of s. 536(2) and a failure to trigger the application of s. 536.2 will not preclude jurisdiction where there is aneffective waiver by the accused” (para. 20). See also Trites at paragraphs 32 and 33. The critical question before the Court is whether ornot the appellant waived his procedural rights under the Criminal Code. He argues he did not.

With respect, I disagree. [49] First and foremost, in spite of his assertions to the contrary, I find that the appellant did instructhis counsel to waive the preliminary inquiry and re-elect his mode of trial to Provincial Court. The appellant was clearly aware he couldhave a trial by judge and jury with a preliminary inquiry. He was, after all, present in court when this initial election was made.However, when the time came for his trial in Provincial Court, the appellant made no protest whatsoever.

He did not express surprisethat there had been no preliminary inquiry, nor at the fact he was appearing before a judge alone with no jury. This distinguishes thepresent case from what transpired in Trites. In that case, the accused promptly made it known that the trial was not unfolding as he hadintended and expected. The appellant’s trial proceeded without complaint. In my opinion, this is because the appellant was receivingprecisely what he wanted, a trial before judge alone in Provincial Court. [50] The appellant’s own words reinforce my conclusions on this point.

The appellant filed the firstNotice of Appeal in this matter without the benefit of counsel. As a self-represented party, he set out his grounds of appeal as follows: The supposed victim accused me at a similar offence 2 ½ yrs. prior to her mother only to recant her statement claiming that she liedbecause she was “mad at me”. Her mother and I continued our relationship until she accused me again. The judge […] referred to a journal that was not in evidence, stating “that the fact the journal was thrown away was irrelevant”, anddisregarding medical evidence, namely a scratch which she claims I caused.

My legal-aid lawyer barely made no effort in my defense. Barely cross-examined the Crown’s witnesses which included the mother andthe doctor who did the examination at the hospital. Refused to call the father of the alleged victim where I believe the scratch occurred,also, the father has other similar charges on his record where I have none.

Refused to contact any of the names I provided her forcharacter witnesses also ignored my numerous request[s] to retrieve my cell phone from the police so I could produce more characterwitnesses. [51] Clearly, the appellant was grounding his appeal on what he perceived to be the ineffectiveassistance of his trial counsel. What is significant about the original grounds of appeal is what they do not include. There is no mentionof not having a preliminary inquiry. There is no mention of being tried by judge alone in Provincial Court. There is no mention of nothaving a jury.

None of these issues was raised by the appellant when he filed his original Notice of Appeal. As Drapeau C.J.N.B. held in

Albert: […] There is every reason to believe designated counsel’s election reflected his client’s wishes and instructions. The appellant did notmove for leave to re-elect. Like any other accused, he is presumed to know the law, and there is nothing in the record to rebut thatpresumption. More specifically, there is not a shred of evidence to suggest the appellant was not aware, at all material times, of his rightto be tried by judge and jury.

There is no evidence of any client/counsel miscommunication, let alone one that culminates in a denial ofthe constitutional right to be tried by a court composed of a judge and jury. The appellant intended to be tried in Provincial Court […].[para. 26] [52] As the Court found in Albert, I am satisfied “the respondent has made the case for theapplication of the principle of waiver” (para. 26). Furthermore, I find compelling the words of Watt J.A., of the Court of Appeal forOntario, in R. v. Shafia, 2016 ONCA 812, [2016] O.J.

No. 5627 (QL): The general injunction against appellate consideration of issues not advanced at trial has strong application where the objection firstadvanced on appeal challenges the jurisdiction of the court constituted to try an appellant. A strong onus settles on an accused to raisejurisdictional challenges at the outset of trial: R. (R.), at p. 199. See also, R. v. Rabba, (1991), (ON CA), 3 O.R. (3d)238, 64 C.C.C. (3d) 445 (C.A.), at pp. 447-448; and R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398, at para. 67.

Were itotherwise, it must appear that the accused was content to be tried by the court as constituted and questions that jurisdiction only becauseof an adverse result: R. (R.), at p. 199. [para. 170] [53] I find there was waiver and would dismiss this ground of appeal. [54] Had I not been convinced waiver was present, I would have invoked the Court’s jurisdictionunder s. 686(1)(b)(iv) of the Criminal Code and applied the curative proviso, relying on the Supreme Court’s decision in R. v.Esseghaier, 2021 SCC 9, [2020] S.C.J. No. 102 (QL) (see paras. 45-48).

In that case, the Court held, “For the purposes of the proviso,‘jurisdiction’ is concerned only with the trial court’s capacity to deal with the ‘subject-matter of the charge’” (para. 47). JusticesMoldaver and Brown provide this direction in a footnote to their decision: [2] Under the proviso, therefore, election errors (e.g., where an accused person elects to be tried in the provincial court but is mistakenlytried in the superior court, or where an accused person elects to be tried by a judge and jury and is mistakenly tried by a judge alone(ss. 536 and 536.1)) will not automatically lead to a new trial.

Whether the error can be cured will depend on whether the accusedsuffered any prejudice. [55] As I have concluded the appellant received precisely what he wished to have, that is, a trial byjudge alone in Provincial Court with no preliminary inquiry, it cannot be said that he suffered any prejudice as a result of the proceduralirregularities outlined above. In the result, I would still dismiss this ground. V. Conclusion and Disposition [56] I would grant the appellant leave to file a Second Amended Notice of Appeal but dismiss hismotion to adduce fresh evidence.

Given that the appellant has not convinced me any of his grounds of appeal warrant appellateintervention, I would dismiss the appeal. Version française de la décision de la Cour rendue par LE JUGE GREEN Le 5 février 2018, la Cour provinciale a rendu l’ordonnance prévue à l’art. 486.4 du Code criminel, qui interdit la publication ou ladiffusion de tout renseignement qui permettrait d’établir l’identité de la victime en l’espèce. Cette ordonnance est toujours en vigueur.

I. Introduction [1] Au terme d’un procès devant un juge de la Cour provinciale, l’appelant, Fred Wayne Horn, a été déclaré coupable des infractions suivantes : avoir touché la plaignante, une enfant âgée de moins de seize ans, à des fins d’ordre sexuel ( al. 151a) du Code criminel ); avoir incité la plaignante à le toucher à des fins d’ordre sexuel (al. 152a)). [2] L’appelant a été condamné à une peine d’emprisonnement de huit ans, moins une réduction pour le temps passé en détention préventive, donnant pour résultat une peine de sept ans et cinq mois.

Il interjette maintenant appel de sa déclaration de culpabilité et demande à la Cour d’accueillir l’appel, d’annuler la déclaration de culpabilité et d’ordonner la suspension de l’instance. Subsidiairement, il demande à la Cour d’ordonner la tenue d’un nouveau procès. Pour les motifs exposés ci-dessous, je suis d’avis de rejeter l’appel. II. Contexte [3] La plaignante est une jeune fille qui avait huit ans à l’époque de la tenue du procès.

À tous les moments pertinents en l’espèce, sa mère et l’appelant entretenaient une relation amoureuse. [4] La plaignante a été victime d’actes de violence sexuelle aux mains de l’appelant de l’âge de cinq ans jusqu’à l’âge de sept ans environ, actes que le juge du procès a résumés ainsi lors de la détermination de la pein e : [TRADUCTION] « pénétration anale, léchage du vagin, de l’anus et des seins, et lui faire le masturber et regarder de la pornographie ». [5] Ces incidents ont été découverts lorsque la plaignante s’est plainte à sa mère d’une irritation dans la zone vaginale et lui a divulgué qu’elle avait été causée par l’appelant.

L’enquête policière qui a suivi a mené à l’inculpation de l’appelant. [6] Au procès, la plaignante, sa mère et l’appelant ont tous témoigné. L’appelant a présenté une version des événements selon laquelle il était la véritable victime et la plaignante était en fait l’agresseuse sexuelle. Le juge du procès a rejeté le témoignage de l’appelant, le jugeant [TRADUCTION] « simplement inconcevable et non fondé » (décision, page 37). Il a conclu que la plaignante et sa mère étaient toutes les deux crédibles et a retenu leurs témoignages.

S’agissant de la plaignante, le juge du procès [TRADUCTION] « a jugé que son témoignage était convaincant et qu’elle avait véritablement subi ces incidents » et [TRADUCTION] « a conclu qu’elle était fiable, qu’elle était une témoin fiable et crédible en ce qui concerne les éléments de preuve essentiels » (décision, page 45). Enfin, le juge du procès a conclu que le ministère public s’était acquitté de son fardeau et qu’il avait établi sa preuve contre l’appelant hors de tout doute raisonnable, et il a donc déclaré l’appelant coupable. III.

Motion préliminaire [7] Par voie d’avis de motion, l’appelant sollicite les mesures suivantes : 1. une ordonnance l’autorisant à déposer un second avis d’appel modifié […] et un délai supplémentaire pour le déposer au

titre de la règle 63.04(2); 2. une ordonnance l’autorisant à produire une nouvelle preuve en appel, au

titre de l’ al. 684(1)

d) du Code criminel du Canada . A. Motion en modification de l’avis d’appel

[8] Dans l’arrêt Smith-Kingsley c. R., 2021 NBCA 51, une décision récente, le juge d’appelDrapeau, s’exprimant au nom de la Cour, a expliqué ce qu’un appelant doit faire pour modifier un avis d’appel : La règle 63.04(2) des Règles de procédure prévoit un délai de 30 jours pour l’émission d’un avis d’appel. Toutefois, ce délai peut êtreprolongé par une ordonnance de la Cour ou de l’un de ses juges. Je suis d’avis de prolonger le délai pour interjeter appel de ladéclaration de culpabilité pour manquement à l’ordonnance de non-communication.

La règle 63.04(3) prévoit que l’avis d’appel doitindiquer les mesures de redressement sollicitées et les moyens d’appel. Pour demander d’autres mesures de redressement ou faire valoirdes moyens supplémentaires, l’appelant doit obtenir l’autorisation de la Cour. Lorsque l’octroi d’une autorisation sert les intérêts de lajustice, la Cour n’hésite pas à donner son aval. [par. 16] [9] Conformément à ce qui précède, je suis d’avis d’autoriser l’appelant à déposer un second avisd’appel modifié. B.

Motion en vue de présenter une nouvelle preuve [10] Quatre affidavits ont été soumis à la Cour en raison de la motion de l’appelant en vue deprésenter une nouvelle preuve. Trois d’entre eux ont été présentés par l’appelant, et le quatrième est un affidavit souscrit par l’avocatequi l’a représenté au procès en réponse à l’allégation de représentation inefficace au procès.

L’appelant demande en outre de présenter, àtitre de nouvelle preuve, les transcriptions des comparutions de son avocate au procès devant la Cour provinciale, les 16 et19 novembre 2018. [11] La Cour suprême a fourni des directives aux tribunaux d’appel en ce qui concerne la question desavoir quand accueillir une motion en vue de présenter de la nouvelle preuve dans l’arrêt R. c.

Stolar, (SCC), [1988] 1 R.C.S. 480, [1988] A.C.S. no 20 (QL), où le juge McIntyre a déclaré ce qui suit : La procédure qui devrait être suivie lorsque la Cour d’appel est saisie d’une demande d’admission d’éléments de preuve nouveauxconsiste à entendre la requête pour ensuite, si elle n’est pas rejetée, la mettre en délibéré et entendre l’appel. De cette façon, la Courd’appel a la possibilité d’examiner la question des éléments de preuve nouveaux en fonction de l’ensemble de l’affaire et de tous lesautres éléments de preuve s’y rapportant.

Elle est alors en mesure de décider réalistement si on pouvait raisonnablement s’attendre à ceque la preuve offerte influe sur l’issue de l’affaire. Alors, si après avoir entendu l’appel, la cour était d’avis qu’on ne pouvait pasraisonnablement s’attendre à ce que cette preuve influe sur l’issue du procès, elle rejetterait la requête visant la production d’éléments depreuve nouveaux, pour ensuite statuer sur l’appel. […] [par. 14, avec renvoi à QL] [12] En l’espèce, c’est précisément de cette façon que nous avons procédé.

La Cour a entendu lamotion en vue de présenter une nouvelle preuve, a mis l’affaire en délibéré, puis a entendu l’appel à proprement parler. C. Nouvelle preuve – l’affidavit du fils de l’appelant [13] Le fils adulte de l’appelant a souscrit un affidavit le 22 janvier 2021. L’appelant souhaiteprésenter l’affidavit comme nouvelle preuve à l’appui de son allégation de représentation inefficace de son avocate au procès.

Lecontenu de l’affidavit consiste principalement en une description de la relation amicale existant entre le déposant et la mère de laplaignante et porte surtout sur une discussion qui aurait prétendument eu lieu entre ces deux personnes en novembre ou endécembre 2017. Le fils allègue avoir relaté le contenu de cette discussion à l’avocate de l’appelant dans l’espoir qu’il soit appelé àtémoigner pour la défense de son père. Il ne l’a pas été. [14] À mon avis, l’affidavit du fils de l’appelant constitue du ouï-dire inadmissible, et je nel’admettrais pas en preuve.

De plus, l’allégation au cœur de l’affidavit a fait l’objet, au procès, des témoignages de la plaignante et de samère. Elles ont toutes deux expressément nié la véraci

[…]