r v. R., 2012 NBCA 76

COURT OF APPEAL OF NEW BRUNSWICK 121-11-CA ROMEO JACQUES CORMIER APPELLANT ROMEO JACQUES CORMIER APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Cormier v. R., 2012 NBCA 76 Cormier c.

R., 2012 NBCA 76 CORAM: The Honourable Justice Larlee The Honourable Justice Richard The Honourable Justice Bell CORAM : L’honorable juge Larlee L’honorable juge Richard L’honorable juge Bell Appeal from a decision of the Court of Queen’s Bench: July 6, 2011 (conviction) August 18, 2011 (sentence) Appel d’une décision de la Cour du Banc de la Reine : Le 6 juillet 2011 (déclaration de culpabilité) Le 18 août 2011 (détermination de la peine) History of case: Decision under appeal: Unreported Preliminary or incidental proceedings: N/A Historique de la cause : Décision frappée d’appel : Inédite Procédures préliminaires ou accessoires : S.O.

Appeal heard: April 10, 2012 Appel entendu : Le 10 avril 2012 Judgment rendered: August 30, 2012 Jugement rendu : Le 30 août 2012

Reasons for judgment by: The Honourable Justice Bell Motifs de jugement : L’honorable juge Bell Concurred in by: The Honourable Justice Larlee The Honourable Justice Richard Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Richard Counsel at hearing: For the appellant: Romeo Jacques Cormier appeared in person For the respondent: Cameron H. Gunn Avocats à l’audience : Pour l’appelant: Romeo Jacques Cormier a comparu en personne Pour l’intimée : Cameron H. Gunn THE COURT The appeal and the application for leave to appeal are dismissed.

LA COUR L’appel et la demande d’autorisation d’interjeter appel sont rejetés. The judgment of the Court was delivered by BELL J.A. I. Background [ 1 ] The following is an abbreviated

summary of the complainant’s testimony at a judge and jury trial held in Moncton in June 2011. At approximately 8:00 p.m. on February 26, 2010, the complainant, D.O., 55 years of age, who had been married to H.O., for over 36 years, left her place of employment at H & R Block, located at The Bay store in downtown Moncton. While walking to her vehicle located in the adjoining parking lot, D.O. was confronted by a knife-wielding male she later came to know as the appellant, Romeo Jacques Cormier. D.O. suffered lacerations to three knuckles when she raised her hands in defence to the knife attack. Mr.

Cormier told D.O. he had stabbed someone, the police were looking for a single male, and, in order to avoid detection, he needed her to walk with him to create the appearance of a couple. He tied her arm to his, told her to stop screaming and that he would kill her if she tried to escape. Mr. Cormier forced her to walk to his residence located in a nearby rooming-house. Over the ensuing 27 days, Mr. Cormier bound and sexually assaulted D.O., forced her to consume non-prescription drugs and stole personal items belonging to her.

On March 24, 2011, a very distraught D.O., wearing only a shirt, undergarments and socks, and with duct tape wrapped around her neck, flagged down a delivery driver, crouched low into the front of the van and, while holding onto the driver’s hand, asked to be taken to the police station. [ 2 ] For his part, Mr. Cormier testified he and D.O. had become lovers in recent years and the two of them had conspired to kill her husband. Although they abandoned the murder plot after the first night together, D.O. stayed with him voluntarily until she decided to go back to her family. Mr.

Cormier says he did not assault D.O., did not kidnap her, nor did he threaten her, forcibly confine her or steal any of her belongings. He says everything that happened between him and D.O. was consensual. When it became evident that D.O. would have to explain her whereabouts, she created the story about the kidnapping and the other offences. According to Mr. Cormier, no part of D.O.’s story is truthful.

[ 3 ] When, on July 6, 2011, a jury found Mr. Cormier guilty on charges of: (1) kidnapping ( s. 279(1) (

a) of the Criminal Code ); (2) unlawful confinement ( s. 279(2) ( a )); (3) theft ( s. 343 ( b )); (4) assault with a weapon ( s. 267 ( a )); (5) sexual assault ( s. 271(1) ( a )); and (6) uttering a death threat ( s. 264.1(2) ( a )), it is clear it rejected his version of events. Pursuant to s. 675(1)( a )(i), Mr. Cormier appeals from all convictions based upon what he claims are errors of law. To the extent his appeal raises questions of fact and mixed law and fact, Mr. Cormier seeks leave to appeal as required by s. 675(1)( a )(ii).

In accordance with s. 675(1) ( b ), he also seeks leave to appeal the sentence of 18 years’ imprisonment, less time served, on the kidnapping infraction as well as the order under s. 743.6 that he is ineligible for parole until he has served one-half of that term. II. Issues raised on appeal [ 4 ] Mr. Cormier is self-represented. In his somewhat rambling 46 pages of submissions, and during his oral argument, Mr. Cormier effectively invites this Court to retry the case. That clearly is not our role ( see Bartlett v. Murphy , 2012 NBCA 44 , [2012] N.B.J. No. 170 (QL) at para. 2 ). I would also note that Mr.

Cormier does not precisely, in language familiar to this Court, set out the grounds of appeal he wishes us to consider. I have therefore attempted to summarize those grounds which merit some degree of analysis: • Incompetence of counsel : According to Mr.

Cormier, counsel should have permitted him to testify about condoms apparently used during the assaults, should have sought to admit into evidence his cell phone, which showed pictures of him and the victim cheek to cheek while stoned, should have permitted him to address the jury on his own behalf, failed to ask about the lack of fingerprints on duct tape apparently used during the offence(s), failed to ask the victim for a description of the rope which was used to tie her up and generally failed to “fight for their client”. • Improper conduct/instructions by the trial judge : Mr.

Cormier says the trial judge committed errors of law when he flirted with one of the jury triers by saying “I would marry you right now” and when he instructed the jury, on several occasions, that he (Mr. Cormier) had led a “dishonest life”. • Inflammatory Crown submission to the jury : Mr. Cormier contends the Crown prosecutor should not have told the jury that his version of events was “pure fiction” and “pure fabrication”. Such instructions, according to Mr. Cormier, are inflammatory and call for a new trial. • Palpable and Overriding Error of Fact : Mr.

Cormier says there are numerous cameras focused on the parking lot where the alleged kidnapping took place and none of them capture him and D.O. He states that the cameras do not lie and if he had been there and if events had unfolded as described by D.O., they would have been captured on the cameras. • Misapplication of the rule in Browne v. Dunn . Mr. Cormier says the trial judge improperly applied the rule both by preventing him from asking questions of a police officer about tips from another officer and by permitting the Crown to recall D.O. • Sentencing appeal : Mr.

Cormier says the trial judge imposed an unreasonable sentence of 18 years’ imprisonment on the kidnapping charge and subjected him to cruel and unusual punishment in violation of his s. 12 Charter right by ordering that he is ineligible for parole until he has served one-half of his prison term. With respect to sentencing, Mr. Cormier also says the trial judge’s use of the word “horrendous” to describe the offence indicates the trial judge lost objectivity and demonstrated a bias against him. III. Analysis A. Incompetence of counsel [ 5 ] In R. v.

G.D.B., 2000 SCC 22 , [2000] 1 S.C.R. 520 , the Court set out the framework by which a claim of incompetence must be assessed:

i. Incompetence is determined by a reasonableness standard (para. 27); ii. The analysis proceeds on a strong presumption that counsel’s conduct fell within a wide range ofreasonable professional conduct (para. 27); iii. The onus is on the appellant to establish the acts or omissions of counsel that he or she contends arenot consistent with reasonable professional judgment (para. 27); iv. A miscarriage of justice may be established if counsel’s conduct resulted in procedural unfairness orif the reliability of the trial’s result may have been compromised (para. 28); and v.

In the event it is apparent that no miscarriage of justice has resulted, it is normally unnecessary foran appellate court to consider the performance component of the analysis (para. 29). [6] In R. v. Lavoie, 2010 NBCA 52, 363 N.B.R. (2d) 55, this Court observed that the onus is onthe appellant to establish counsel’s acts or omissions constituted incompetence and that a miscarriage of justice resulted from those actsor omissions. It is not the function of an appellate court “[…] to second guess or perform a retrospective analysis of trial tactics, strategyor the judgment exercised by trial counsel.

Considerable deference is owed to counsel’s decisions made during the trial” (Lavoie, para.7). [7] Courts normally require proof that the appellant has provided trial counsel with notice of thealleged incompetence, and that he or she has been provided with notice of the date and time when the appeal will be heard. See R. v.Michaud, 2011 NBCA 74, 376 N.B.R. (2d) 170; R. v. C. (L.S.), 2003 ABCA 105, [2003] A.J. No. 388 (QL); R. v. Elliott, (ON CA), [1975] O.J. No. 1185 (C.A.) (QL).

Given the seriousness of a finding that a lawyer failed to competently perform his orher work, it is only fitting that he or she has the opportunity to respond to the allegations. There is no evidence in the record before usthat Mr. Cormier advised his former lawyers that he intended to challenge their competency. [8] Another feature often present in appeals based upon an allegation of incompetence is anapplication to adduce fresh evidence (see R. v. Brooks, 2008 NBCA 49, 331 N.B.R. (2d) 268).

The fresh evidence sometimes takes theform of an affidavit from another lawyer in which he or she outlines the minimal standards of competence in relation to the impugnedsubject matter. Mr. Cormier brings no application for the admission of fresh evidence. As a result, it is left to this Court to review thetranscripts in order to determine whether there is any merit to this ground of appeal. [9] The trial transcripts reveal that Mr. Cormier testified, in rather prolix answers, to simplequestions and embarked upon subject matters his lawyers no doubt preferred he would have avoided.

The record does not support Mr.Cormier’s assertion that his counsel limited him in his ability to make full answer and defence. I am of the view the transcript does notreveal any incompetence on the part of Mr. Cormier’s counsel. In my view, they performed admirably in very trying circumstances witha difficult client. B. Improper Conduct/Instructions by the trial judge

(1) Improper Conduct [10] Mr. Cormier asserts the trial judge acted inappropriately, even flirtatiously, toward one of thejuror triers. This argument is based upon a comment by the trial judge to a prospective juror trier, Ms. Drake. The complete exchange,including observations by legal counsel, is set out below: NICOLE DRAKE, DULY SWORN, TESTIFIED AS FOLLOWS:

EXAMINATION BY THE COURT: Q. Mrs. Holder (sic) – Mrs. Drake, had you been called forward – I would marry you right now – excuse me, Mrs. Drake, had you been called forward and had you been asked the question, okay, if there were any reasons why you felt you should be exempted to serve as juror, what would have been your answer? A. Exempted, no there’s no reason. Q. Okay, to be exempted. Now, yesterday I referred to personal interest somehow related to either the complainant or the accused.

Partiality that is essentiality may be a preconceived opinion on what would be the result or preconceived opinion of what you should – would favour the Crown or the defense. All of these arguments, reasons. When you were listening to these – these remarks or these opening remarks I was giving to the panel, none of – none of these reasons came to – came as maybe a possible reason that would disqualify you? A. No – Q.

Okay, if I ask you if you have a wish, personal wish or preference what you’d like to hear in term of verdict at the end of this trial, like verdict of guilty or guiltiness or not guilty, do you have your mind made up on that? A. No. Ms. St-Jacques: The Crown is satisfied that those two persons (inaudible) MR. RIDEOUT: And the defense is satisfied as well . Thank you, My Lord. THE COURT: Okay, thank you. So, well, at this point I’ll have you take an oath, okay. Again, Mrs. Savoie can you bring – bring the Bible to Mr. Holder and Mrs. Drake. Okay, so Mr. Holder – Mr. Holder and Mrs.

Drake you have your right hand on the Bible again. You were selected to serve as jurors of – triers of the jurors, okay, and you will be asked to determine if the prospective jurors that will take the witness stand are acceptable or not as prospective – as jurors to sit in this trial. And, you will make that decision based on the instructions that I gave you this morning. Ultimate issue, are they acceptable are not and it’s not – are they bias or not or are they impartial or not or put another way, are they indifferent or not?

Taking that into consideration, the instructions I gave you, do you swear that you will make a decision on these issues based upon your conscious and you will give a verdict according to your conscious? MR. HOLDER: Yes. MS. DRAKE: (inaudible). THE COURT: Thank you. Are you satisfied with that oath? MR. RIDEOUT: Yes, My Lord. THE COURT: Are you satisfied with that oath? VOICE: Yes, My Lord. THE COURT: So, at this time we would call the first prospective juror.

[Emphasis is mine] [11] While the mention of marriage is indeed out of place in this line of questioning, it seems fairlyclear that the judge was making reference to his having accidentally called Ms. Drake “Mrs. Holder,” which is the surname of the malejuror trier he had been questioning immediately before addressing Ms. Drake. The judge corrected himself immediately, and then beganto question the potential trier as to whether she felt she should be exempted. The judge’s interjection about marriage, followed by thewords “excuse me” and a reiteration of Ms.

Drake’s correct name, appears to be a reference to his having erroneously identified her asthough she were the wife of the previous trier. Although out of place, this comment appears to have been an attempt at humor at thejudge’s own expense, rather than a suggestive or flirtatious comment for the benefit of Ms. Drake. It is also important to note thatdefense counsel raised no objection to the conduct of the judge in this regard, and expressed satisfaction with the process as it hadunfolded.

This is consistent with the comment having been an attempt at levity, rather than an inappropriate flirtation. [12] In R. v. Dilillo, [1991] B.C.J. No. 3478 (C.A.) (QL), McEachern C.J.B.C. stated “I would notwish counsel to understand that an occasional foolish remark by a judge or counsel or an isolated unkind remark, or even a feeble orunsuccessful attempt at humour should lead to the conclusion that there has been an unfair trial” (para. 17). Similarly, in R. v.Thompson, [2009] O.J. No. 1966 (Ont.

S.C.J.) (QL), the court dismissed arguments that the trial judge had demonstrated “anapprehension of bias and inappropriate judicial demeanour by his jocular comments and other interjections made throughout the trial”(para. 3). In that case, the appellant took issue with various remarks of the judge throughout the trial. However, MacLeod-Beliveau J.observed: While the trial judge's comments, off topic discussions with witnesses and jocular remarks would have been better left unsaid, I cannotfind that the trial judge was unable to hear and determine the case with an open and dispassionate mind.

The grounds for anapprehension of bias must be substantial. The remarks made, while unfortunate, in my view do not meet the test for bias. I find that thetrial judge considered all the evidence in an even handed manner and made his decision without bias. [para. 33] [13] Taken as an attempt at humour, the judge’s comment to Ms. Drake is out of the ordinary, butdoes not rise to the level of inappropriate judicial demeanor.

Furthermore, this single remark to a juror trier would not cause an informedperson to conclude that the judge would be motivated by bias or unable to preside over a fair trial of the accused. [14] Because the selection of an impartial jury is crucial to a fair trial, judicial interaction with jurortriers has been exposed to some scrutiny. However, appellate review in this area has been concerned with the substance of instructions totriers (see R. v. Li, (ON CA), [2004] O.J. No. 718 (C.A.) (QL), R. v. Hubbert, (ON CA), [1975] O.J.No. 2595 (C.A.) (QL), aff’d (SCC), [1977] 2 S.C.R. 267, [1977] S.C.J.

No. 4 (QL)), procedural adherence to therelevant Criminal Code provisions (see R. v. Barrow, (SCC), [1987] 2 S.C.R. 694, [1987] S.C.J. No. 84 (QL)) andjudicial usurpation of the triers’ function (see R. v. Cardinal, 2005 ABCA 303, [2005] A.J. No. 1225 (QL)), rather than accusations ofinappropriate familiarity. I am of the view, however, that cases involving inappropriate familiarity with jurors (as opposed to jury triers)can offer some assistance in the present analysis. In R. v. Snow, (ON CA), [2004] O.J.

No. 4309 (C.A.) (QL) theCourt described the law as it relates to inappropriate jury contact as falling into two broad categories: The first category includes conduct that is so serious that it destroys the appearance of justice and fairness of the trial. In cases fallingwithin this first category, there is no need to inquire into whether the accused suffered actual prejudice. […] The second category includes cases of jury contact that is inappropriate, but not so egregious as to undermine the appearance of trialfairness.

In these cases it is necessary to inquire whether the accused suffered prejudice as a result of the contact. […] [paras. 39-40] [15] Mr. Cormier makes no allegation of any contact between the trial judge and Ms. Drake outsidethe courtroom, the juror triers were randomly chosen, and the comment made by the trial judge was not related to any issue in the case.More importantly, Ms. Drake never became a juror. The appearance of justice and fairness at the appellant’s trial was not harmed by thejudge’s comment to Ms.

Drake. [16] Although triers are crucial to a fair trial, individuals who are not eligible to serve as jurors may,

nevertheless, perform the role of trier without error. In R. v. English, (NL CA), [1993] N.J. No. 252 (Nfld. C.A.)(QL), leave to appeal refused, [1993] S.C.C.A. No. 465 (QL), the two triers were later found to have been partial. Nevertheless, thecourt considered the decisions of the triers and found there was no evidence their partiality had tainted the process of accepting andrefusing potential jurors. [17] Similarly, in R. v. Fischer, 2005 BCCA 265, [2005] B.C.J. No. 1042 (QL), leave to appealrefused, [2005] S.C.C.A. No. 308 (QL), an underage high school student had acted as a trier.

Hall J.A. disposed of the issue by adoptingthe reasoning in R. v. Cece, (ON CA), [2004] O.J. No. 3938 (C.A.) (QL), in which an individual, later found to havea criminal record, had participated in trying jurors for cause: [I]n our view, the participation of an ineligible person in the jury selection process was at most an irregularity and the trial judge had adiscretion to proceed in the manner that he did.

Accordingly, s. 671 of the Criminal Code is a complete answer to this ground of appeal.The appellants were not prejudiced by a procedure that they sought and no miscarriage of justice was occasioned. [para. 4] [18] Because the “marriage” comment was not so egregious as to destroy the appearance of trialfairness on its face, there must have been actual prejudice to Mr. Cormier in order for him to succeed on this ground of appeal. There isnothing on the record to suggest that Ms. Drake did not act independently in her role as a juror trier. As a result, I am of the view there isno merit to this ground of appeal.

(2) Instructions by the trial judge [19] Mr. Cormier contends the trial judge erred during his final jury instructions by emphasizing Mr.Cormier’s criminal record without giving sufficient warning as to its limited use. The proper approach to appellate review of a jurycharge is set out by Drapeau C.J.N.B. in R. v. O’Brien (R.S.), 2003 NBCA 28, 257 N.B.R. (2d) 243: It is axiomatic that a charge to the jury must be considered in its totality, as well as contextually, to determine whether there is merit toany challenge to its correctness or adequacy.

Appellate review is driven by case-specific considerations of substance, not form. AsArbour, J., states in R. v. Rhee (D.G.), 2001 SCC 71, [2001] 3 S.C.R. 364, at para. 21, “[a]ppellate review of a charge to the jury is not amechanical task.” The reviewing court should apply a functional approach and dismiss any challenge to the judge’s charge if it features instructions thatenabled the jurors to understand the case before them and to fulfill their adjudicative mandate. Needless to say, flawlessness in a chargeto the jury is neither expected, nor required.

On that score, I can do no better than repeat Chief Justice Lamer’s oft-quoted remarks in R.v. Jacquard (C.O.), (SCC), [1997] 1 S.C.R. 314, at paras. 1-2: … It is undoubtedly important that jurors try the right facts according to the appropriate legal principles in each case. However, we mustensure that the yardstick by which we measure the fitness of a trial judge’s directions to the jury does not become overly onerous. Wemust strive to avoid the proliferation of very lengthy charges in which judges often quote large extracts from appellate decisions simplyto safeguard verdicts from appeal.

Neither the Crown nor the accused benefits from a confused jury. Indeed justice suffers. These comments are not meant to suggest that we sanction misdirected verdicts. This Court has stated on repeated occasions that accusedindividuals are entitled to properly instructed juries. There is, however, no requirement for perfectly instructed juries.

As I specificallyindicated at the hearing of this case, a standard of perfection would render very few judges in Canada, including myself, capable ofcharging juries to the satisfaction of such a standard. (Underlining in original text). [paras. 25-26] [20] In this case, the trial judge cautioned the jury about the use to be made of Mr. Cormier’scriminal record:

As well, Romeo Jacques Cormier admitted that he had previously been convicted of criminal offences. You may only use the fact andnature of those convictions to help you decide how much or little you will believe and rely upon the testimony of Romeo JacquesCormier in deciding this case. Previous conviction, even many of them, does not necessarily mean that you cannot or should not believeor rely upon the testimony of Romeo Jacques Cormier to help you decide this case. The prior convictions are only one of many factorsfor you to consider.

Some convictions, for example, ones that involve dishonesty may be more important than others in deciding howmuch or little you will believe of and rely upon the testimony of a witness. Other convictions may be less important. Consider as wellwhether the previous convictions are recent or happened a number of years ago. Use your common sense and experience in consideringtheir impact.

It is very important that you understand that you must not use the fact of a criminal record or the nature of the prior convictions to decideor help you decide that the accused is the sort of person who would commit the offences charged in − in the trial. [Emphasis is mine] [21] There is no dispute about the adequacy of this caution.

However, when reviewing the first ofsix charges in detail, the trial judge made the following comments: On cross examination by Crown counsel, the accused states he is an ex-convict and admits having committed crimes and having spenttime behind bars, namely a robbery in 1984 that brought him four years, another robbery in 1994, a theft in 2004, that brought him sixmonths, and ultimately, the accused simply agrees with the Crown counsel that his life was one of law defiance and of dishonesty.

If you believe Romeo Jacques Cormier’s evidence that he did not commit the offence of unlawful kidnapping of [D.O.], you must findhim not guilty to count one. If you do not believe the testimony of Romeo Jacques Cormier but are left in a reasonable doubt by it, meaning that the testimony ofRomeo Jacques Cormier leaves you with a reasonable doubt about his guilt or about one of the essential elements of the offence chargedin count one of the Indictment, you must find Romeo Jacques Cormier not guilty to that count one.

Even if you are not left in doubt by the evidence of the accused, meaning that the testimony of the accused does not leave you with areasonable doubt about his guilt or about an essential element of the offence charged of unlawful kidnapping, you may convict theaccused only if on the basis of the evidence presented in this trial and that you do accept, you are convinced beyond a reasonable doubtof his guilt to unlawful kidnapping as charged with count one of the Indictment. [Emphasis added] [22] References to Mr.

Cormier’s admissions of “law defiance” and “dishonesty” also appear in thejudge’s discussion of three of the other charges and a general reference to his “criminal admissions” appears in a fourth. Although thecaution is not repeated each time these references occur, the initial warning was thorough and clear, and no other form of negativecharacter evidence is introduced. As a result, the charge in this case can be distinguished from that in R. v. C.(J.D.), [2003] O.J.

No. 214(C.A.) (QL), in which a single caution about the use of the appellant’s criminal record was found not to sufficiently warn against themisuse of propensity evidence. [23] The references to Mr. Cormier’s admissions of “law defiance” and “dishonesty” are notsprinkled throughout the judgment in order to malign him; rather, on each occasion they preface the trial judge’s explanation ofcredibility and his instructions regarding R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26 (QL), whichinstruction is largely credibility driven.

In light of the sufficient general warning and the context of each subsequent reference to theappellant’s criminal record, the overall charge was sufficiently adequate to warn the jury against the misuse of Mr. Cormier’s criminalrecord. While it would have been preferable to repeat the caution each time Mr. Cormier’s record and life of dishonesty were mentioned,failure to do so does not, in my view, constitute reviewable error. C. Inflammatory Crown Submission to the jury [24] Mr. Cormier contends Crown counsel made inflammatory remarks in his closing address to thejury when he described Mr.

Cormier’s testimony as “pure fiction” and “pure fabrication”.

[25] In his closing address to the jury, Crown counsel said: And all that evidence came from a man who is trying to make this Court believe that [D.O.] was peeing in a green bucket at night in hisroom on her own free will and that she was okay using toilet paper and paper towels during her periods. We respectfully submit that theversion of events presented by the accused is pure fiction, pure fabrication, is that everything that he said does not make any kind ofsense and shouldn’t raise any kind of doubt in your mind. [Emphasis is mine.] [26] In R. v.

King, 2008 NBCA 81, 338 N.B.R. (2d) 163 (QL), leave to appeal refused, [2009]S.C.C.A. No. 291 (QL), Quigg J.A. summarized the principles to be applied to determine whether remarks made by counsel during theclosing address are inappropriate: In R. v. Melanson (S.A.) (2007), 325 N.B.R. (2d) 203, [2007] N.B.J. No. 474 (QL), 2007 NBCA 94, Richard J.A. has this to say at para.70: With regard to the reprehensible statements Crown counsel was found to have made, Deschênes, J.A., adopted the following test, whichFish, J.A. (as he then was), set out at p. 82 of R. v. Charest (A.), [1990] Q.J.

No. 405; (QC CA), 28 Q.A.C. 258(C.A.): "Ultimately, the conclusive test is whether the objectionable comments are seen to have deprived the accused of his right to a fair hearingon the evidence presented at trial." Richard J.A. goes on to say at para. 71: Although noting, at para. 124, that the trial judge in Doiron, 2007 NBCA 41 , [2007] N.B.J.

No. 189, "should have reactedimmediately and instructed the jury to ignore [Crown counsel's] inappropriate remarks while reminding them that they had to reach theirverdict on the basis of the evidence alone, Deschênes, J.A., found that, in the circumstances of that particular case, he was not satisfiedthat the fairness of the trial had been compromised. He noted that both Crown counsel in his address and the trial judge in his charge hadtold the jury in the clearest of terms that what the prosecutor said did not constitute evidence.

And further, at para. 75: The principles derived from these cases can be summarized as follows: 1. The role of Crown counsel excludes any notion of winning or losing; his or her conduct before the Court must always be characterizedby moderation and impartiality; 2. It is improper for Crown counsel to appeal to passion, use inflammatory language, express his or her own opinion, or mislead the juryon what the evidence discloses; 3.

The trial judge has a duty to intervene in the event of Crown counsel's misconduct and a failure to do so constitutes an incorrectdecision on a question of law under s. 686(1)(a)(ii) of the Criminal Code; 4. The nature of the trial judge's intervention in the face of Crown counsel's improper conduct will depend on the circumstances of eachcase, but it will generally be necessary for the judge to be forceful and give precise examples of what constitutes the misconduct insteadof just making a general call for the jury to be dispassionate.

The judge's obligation is to restore a proper balance of fairness, by repairing

any damage that was caused to the jury's decision-making process by Crown counsel's improper conduct; and, 5. Not all failures of the trial judge to intervene will result in a new trial. The Court of Appeal will need to determine whether, in light ofthe evidence presented at trial and the entire charge to the jury, a miscarriage of justice resulted from the judge's failure to intervene. [paras. 28-30] [27] In R. v. Charest (A.), [1990] J.Q. No. 405 (C.A.) (QL), Fish J.A., as he then was, noted similarprinciples and explained how those principles should be applied: These principles are well-known.

Their application, of course, is a function of the nature and number of comments made in each case, ofthe specific language used and of the overall tone of counsel's address. The likely effect of any corrective action taken by the trial judgemust also be considered. [Emphasis is mine] [p. 424] [28] While Crown counsel should not express his or her personal opinion regarding the credibility ofthe accused (see R. v. Chambers, (SCC), [1990] 2 R.C.S. 1293, [1990] S.C.J. No. 108 (QL) at para. 34; R. v.

Doiron,2007 NBCA 41, 315 N.B.R. (2d) 205 at paras. 120-122; and Pierre Béliveau & Martin Vauclair, Traité général de preuve et deprocédure pénales, Cowansville, Yvon Blais, 2009 at p. 827), that is not what occurred in this case. By prefacing his remarks with thewords “We respectfully submit” Crown counsel maintained an appropriate degree of objectivity and distance. In any event, I am of theview the references to fiction and fabrication did not deprive the accused of his right to a fair trial for the following reasons.

First, theremark consisted of only one short sentence in which Crown counsel suggests the accused is not telling the truth. Such an approach canbe distinguished from those in which Crown counsel makes numerous and lengthy remarks regarding the credibility of the accused (seefor example, R. v. L.L., 2009 ONCA 413, [2009] O.J. No. 2029 (QL) at paras. 71 and 72). Second, the words “We respectfully submit”attenuated the possible inflammatory effect that any personal opinion could have had on the jury.

Third, in his instruction to the jury, thetrial judge clearly stated what is considered to be evidence and what is not. He properly instructed the jury to consider all the evidence inreaching their verdict and informed them that counsel’s submissions did not constitute evidence. In my view, the trial judge’s finalinstruction neutralized any harm that was not already remedied by Crown counsel’s introductory words (see R. v. Kokopenace, 2011ONCA 536, [2011] O.J. No. 3484 (QL) at para. 42). D. Palpable and Overriding Error of Fact (cameras) [29] Mr.

Cormier says D.O. cannot be believed because cameras focused on the exit from The Bayand the parking area prove he was not present on the evening of the kidnapping. With respect, Mr. Cormier’s understanding of theevidence is inconsistent with the record. Cst. Barnes testified as follows: MR. BARNES: I’m going to stop it now, Pierre. That’s [D.O.] leaving the Bay and the time on it is 20:08:24 or 8:08:24 p.m. on the − 26th of February, 2010. That is the end of the video. Q. Officer Barnes, on the last two video [sic] that we – we saw, that’s from inside of − of the Bay, correct? A. Yes. Q.

Was there any other camera outside (indistinct) directly at that specific entrance? A. There was. It was on the very southeast corner like that whole video that we looked at for the half hour, on that corner is acamera that is – actually it belongs to Highfield Square itself. It was non-functional on that evening.

[ 30 ] In his closing submission to the jury, Crown counsel dealt directly with the fact that Mr. Cormier did not appear on the video which should have captured the kidnapping. He said: My last comments about videos – there was – was a lot of video surveillance towards – surrounding the Highfield Square. The most important video that would’ve been able to see exactly what took place when Mr. Cormier showed the knife to [D.O.] to kidnap her was at the back door and – and Constable Barnes indicated that that video was not operable on that night.

Members of the jury, it is the Crown’s position that we have proven every elements (sic) of every offences (sic) laid against the accused. [ 31 ] Defence counsel took no issue with the explanation that the relevant camera was inoperable on the night of the kidnapping. I would reject Mr. Cormier’s assertion that if he had committed the offence he should have been captured on video. The Crown provided an explanation which refuted his assertion. It is apparent the jury accepted that explanation. There is no merit to the assertion the decision maker committed a palpable and overriding error of fact in relation to Mr.

Cormier’s presence in The Bay parking lot on the night of the kidnapping. E. Misapplication of the rule in Browne and Dunn [ 32 ] What has become known as the Rule in Browne and Dunn is, in its simplest form, an endorsement of fairness in the treatment of witnesses. The origins of the Rule are found in the following excerpt from Lord Herschell’s judgment in Browne v.

Dunn (1893), 1893 CanLII 65 (FOREP) , 6 R. 67 (H.L.) : My Lords I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him and opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. [ 33 ] The orthodox approach to the rule in Browne and Dunn would require the opposing party cross- examine a witness on every detail of the evidence upon which it is intended to challenge him or her.

According to that approach, in the absence of a challenge to a witness on a matter, counsel cannot later elicit testimony contradicting the witness’ version. However, a more flexible approach to the Rule has developed in Canada. In R. v. Lyttle , 2004 SCC 5 , [2004] 1 S.C.R. 193 , the Court concluded there exists no absolute rule; rather, there exists a sound principle of general application that one should be given an opportunity to respond to planned attacks on one’s credibility.

The extent of its application is “[…] within the discretion of the trial judge after taking into account all of the circumstances of the case.”[…] ( Lyttle , para. 65 ). In R. v.

Gardiner , 2010 NBCA 46 , 362 N.B.R. (2d) 179 , this Court acknowledged the flexibility of the Rule and declined to define it so narrowly that it would become a blanket prohibition against leading evidence which casts doubt upon an earlier unchallenged statement made by a witness: However, in Lyttle , Major and Fish J.J. explain that the rule "is not fixed" and that "[t]he extent of its application is within the discretion of the trial judge after taking into account all the circumstances of the case," but also acknowledge that the rule remains "a sound principle of general application" (para. 65). [para. 22] [ 34 ] Mr.

Cormier contends the trial judge erred on two occasions with respect to the rule in Browne v. Dunn . First, he contends the trial judge improperly applied the rule to prevent him from asking questions of a police officer about tips from another officer. Those tips concerned a potential relationship between D.O. and a third party (not her husband). According to Mr. Cormier, the answers to those questions would have contradicted the testimony of D.O.’s sister regarding the potential of such a relationship. Mr. Cormier’s counsel had not put those questions to D.O.’s sister when she testified.

The trial judge refused to permit the questions. He noted that the answers sought from the police witness were double hearsay and, since their purpose was to contradict the testimony of D.O.’s sister, they should have first been put to her. Second, Mr. Cormier says the trial judge improperly applied the rule when he permitted the Crown to recall D.O. Briefly, the facts are that, in the course of his direct examination, Mr. Cormier provided accounts of meetings and conversations he had had with D.O. before the kidnapping. During those encounters, according to Mr.

Cormier, D.O. said that her husband was an alcoholic and that she wanted to leave him. The Crown objected to the admissibility of those statements, since they had never been put to D.O. while she was in the witness box. Following the Crown’s objection, the trial judge ruled the defence could either limit their questions to general questions similar to those put to D.O., or, if they wanted to lead evidence about specific conversations, the Crown would be permitted to recall D.O. Mr. Cormier’s counsel proceeded with the specific questions, and the Crown recalled D.O. for purposes of making a very narrow response.

[35] In both circumstances, the trial judge exercised his discretion after taking into account all of thecircumstances. Unless that exercise of discretion “is founded upon an error of law, an error in the application of the governing principlesor a palpable and overriding error in the assessment of the evidence [...] or if it is unreasonable, in the sense that nothing in the recordcan justify it”, this Court should not interfere (The Beaverbrook Canadian Foundation v. The Beaverbrook Art Gallery, 2006 NBCA 75,302 N.B.R. (2d) 161, para. 4). There is no evidence of any such error by the trial judge.

I would dismiss this ground of appeal. F. Appeal against the sentence passed [36] Mr. Cormier does not contest the sentences passed in relation to the convictions for sexualassault, unlawful confinement, assault with a weapon, uttering a death threat and theft. He contends, however, that the sentence of 18years less time served, with no chance of parole until ½ the term has been served, imposed for the kidnapping infraction, isunreasonable. He requests this Court intervene, both with respect to the duration of the penalty as well as the order respecting paroleeligibility. Mr.

Cormier is particularly offended that on numerous occasions the trial judge described the offences as “horrendous”. Mr.Cormier contends the use of the word “horrendous” by the trial judge demonstrates he did not enter the sentencing phase of the trial withappropriate objectivity. [37] This Court owes deference to sentencing judges. Absent “an error in principle, failure toconsider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentenceimposed at trial if the sentence is demonstrably unfit” (see R. v.

LeBlanc, 2011 NBCA 28, 370 N.B.R. (2d) 385, para. 7, citing R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28 (QL) at para. 90, and R. v. L.M., 2008 SCC 31, [2008] 2S.C.R. 163 at paras. 14-15). [38] The sentencing judge, in an exhaustive analysis, considered the purpose of sentencing set out ins. 718 of the Code and the objectives of sentencing, which include rehabilitation, denunciation, specific deterrence, general deterrenceand, where necessary, the separation of offenders from society.

He considered the aggravating and mitigating circumstances, and theneed for a sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1). [39] In addressing the objectives of sentencing, the trial judge, among other factors, considered Mr.Cormier’s lengthy criminal record, the horrendous nature of the crimes for which he was convicted, the victim-impact statements of thevictim and those close to her, and the need for specific and general deterrence. He stated that in passing sentence he adopts the facts asrelated at trial by D.O.

He considered the possibility of Mr. Cormier’s rehabilitation and, in a very reasoned analysis, dismissed it as aserious factor in the sentencing of this 62-year-old man. [40] I am of the view the trial judge’s approach to the sentencing function and his analysis is beyondreproach. In response to Mr. Cormier’s concern about the trial judge’s characterization of the crimes as “horrendous”, I would simply indicate that I agree with the trial judge and, in my view, heappropriately described the crimes committed by Mr. Cormier. I would dismiss the application for leave to appeal sentence. IV.

Conclusion [41] I would dismiss the appeal and the application for leave to appeal. ________________________________ B. RICHARD BELL, J.A. WE CONCUR:

_____________________________ M.E.L. LARLEE, J.A. _____________________________ J.C. MARC RICHARD, J.A.