2014 NBCA 30, 2014 NBCA 30

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 72-13-CA JONATHAN ST-PIERRE APPELLANT JONATHAN ST-PIERRE APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE St-Pierre v. R., 2014 NBCA 30 St-Pierre c.

R., 2014 NBCA 30 CORAM: The Honourable Justice Robertson The Honourable Justice Richard The Honourable Justice Green CORAM : l’honorable jug e Robertson l’honorable juge Richard l’honorable juge Green Appeal from decisions of the Court of Queen’s Bench: April 17, 2013 (conviction) May 16, 2013 (sentence) Appel de décisions de la Cour du Banc de la Reine : le 17 avril 2013 (déclaration de culpabilité) le 16 mai 2013 (prononcé de la sentence) History of case: Decision under appeal: Unreported (conviction) 2013 NBQB 169 (sentence) Preliminary or incidental proceedings: N.A.

Historique de la cause : Décision frappée d’appel : inédite (déclaration de culpabilité) 2013 NBBR 169 (prononcé de la sentence) Procédures préliminaires ou accessoires : s.o. Appeal heard: April 17, 2014 Appel entendu : le 17 avril 2014 Judgment rendered: May 15, 2014 Jugement rendu : le 15 mai 2014

Counsel at hearing: For the appellant: Patrick E. Hurley, Q.C. For the respondent: Kathryn A. Gregory THE COURT The appeal against conviction and the application for leave to appeal sentence are dismissed . Avocats à l’audience : Pour l’appelant : Patrick E. Hurley, c. r. Pour l’intimée : Kathryn A. Gregory The following is the judgment delivered by THE COURT [ 1 ] On April 17, 2013, a jury found Jonathan St-Pierre guilty of having touched an eight-year-old girl for a sexual purpose ( s. 151 of the Criminal Code , R.S.C. 1985, c.

C-46), and, on May 16, 2013, a judge of the Court of Queen’s Bench sentenced him to imprisonment for three years and imposed a number of ancillary orders. Mr. St-Pierre appeals his conviction and seeks leave to appeal the sentence. For the reasons that follow, both the appeal and the application for leave to appeal are dismissed. [ 2 ] In giving reasons for sentence, the trial judge summarized the facts of the case as follows: The evidence disclosed that for as many as 20 times to a minimum of 10 times Mr. St-Pierre fondled the vaginal area of [the complainant] when she was eight years of age.

She described the incidents in detail and after being before the Courts three times, she did not equivocate in her testimony. Mr. St-Pierre was a trusted friend of [the complainant’s] stepfather. He was often at the home of [the complainant] and he was on many occasions alone with her, ostensibly to read stories to her or watch movies. […] […] In this case [the complainant] was eight years old. Mr. St-Pierre followed a pattern of conduct that allowed him to gain the trust of [the complainant] and her family.

On a spectrum of sexual interference this touching was at the more serious end of the scale in that it involved the rubbing of the pelvic area, and in particular the clitoris, and it involved Mr. St-Pierre rubbing up and down in the vaginal area with his index finger, all of which was on-going and not limited to one occasion. This was predatory, deliberate sexual touching by Mr. St-Pierre, in a very calculated manner which enhances Mr. St-Pierre’s moral blameworthiness. […] [paras. 2, 3 and 9] [ 3 ] Mr. St-Pierre raises two grounds of appeal against conviction and two against sentence.

[4] With respect to the appeal against conviction, Mr. St-Pierre alleges the trial judge: (1) failed toadequately instruct the jury as to his defence; and, (2) erred in law in interfering with his counsel’s (not counsel on appeal) cross-examination of the complainant, thereby preventing full answer and defence. In our view, neither of these grounds has any merit. [5] The judge gave the jury detailed instructions and was careful to include a directive along thelines of the Supreme Court of Canada’s direction in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, [1991] 1 S.C.J. No. 26(QL).

Addressing the position of the defence, the judge told the jury Mr. St-Pierre claimed the allegations against him were untrue andthat, in any event, the charge had not been proven beyond a reasonable doubt. [6] While it is true that the judge gave very brief instructions under the heading “the position ofthe defence”, the law is clear that in assessing a jury charge an appellate court must consider the charge “in its totality, as well ascontextually, to determine whether there is merit to any challenge to its correctness or adequacy”: O’Brien v. R., 2003 NBCA 28, 257N.B.R. (2d) 243 at para. 25.

Writing for the Court, Drapeau C.J.N.B. continues: 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, (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. [para. 26] [Emphasis in original.] [7] In our view, the charge to the jury in this case sufficiently enabled the jurors to understand thecase before them and to fulfill their adjudicative mandate.

This was a three day trial, without expert witnesses or complicated evidentiaryissues. The charge was neither complex nor lengthy and was delivered the morning following the testimony of the accused and theaddresses of counsel. The defence raised was not complicated, and the jury would have been well aware that the accused was denyingthe allegations against him and that he was maintaining the prosecution had not proven its case beyond a reasonable doubt. Moreover,although Mr. St-Pierre points only to the

section where the judge says she is reviewing the position of the defence, the fact is that thispart of the charge comes not long after the judge had summarized aspects of Mr. St-Pierre’s testimony. In these circumstances, there issimply no merit to the allegation the charge was flawed. [8] As for the allegation the judge erred in interfering with defence counsel’s cross-examination ofthe complainant, it too is without merit. We agree a judge should not figuratively step down from the bench and assume the role ofcounsel. The law in this respect was recently reviewed in R. v. Gahan, 2014 NBCA 18, [2014] N.B.J.

No. 77 (QL), at para. 30-35.However, we do not see how it can be said the judge in this case crossed the line. The alleged interference consists of a few remarks thejudge directed at defence counsel mostly with a view to having the cross-examination of the nine-year-old complainant completed beforethe court adjourned for the day and to inform counsel the Court would, if necessary, sit beyond regular working hours. [9] In our view, the judge’s interventions were not improper, considering that the witness was ayoung child of only nine years and defence counsel was an experienced criminal defence lawyer.

Not only did defence counsel not objectto what was being proposed, but he actually acquiesced, stating at one point “that’s fair enough.” While we recognize that the failure toobject is not determinative, it is nevertheless an indication that counsel did not feel hampered in his cross-examination. [10] Turning to the application for leave to appeal the sentence, we are of the view the two grounds

Mr. St-Pierre raises would not result in our varying the sentence. As a result, the application is dismissed. Admittedly, the sentence imposed exceeds what the prosecution was seeking, but it is neither unreasonable, nor the product of any error of law or principle. [ 11 ] For these reasons both the appeal against conviction and the application for leave to appeal the sentence are dismissed. ______________________________ J.T. ROBERTSON, J.A ______________________________ J.C. MARC RICHARD, J.A . ______________________________ BRADLEY V. GREEN, J.A.