2014 NBCA 5, 2014 NBCA 5

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 31-12-CA DANIEL GINNISH APPELLANT DANIEL GINNISH APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Ginnish v. R., 2014 NBCA 5 Ginnish c.

R., 2014 NBCA 5 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Quigg The Honourable Justice Green CORAM : l’honorable juge en chef Drapeau l’honorable juge Quigg l’honorable juge Green Appeal from a decision of the Provincial Court: December 22, 2011 (conviction) February 16, 2012 (sentence) Appel d’une décision de la Cour provinciale : le 22 décembre 2011 (déclaration de culpabilité) le 16 février 2012 (prononcé de la sentence) 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 10, 2013 Appel entendu : le 10 septembre 2013 Judgment rendered: January 30, 2014 Jugement rendu : le 30 janvier 2014 Reasons for judgment by: The Honourable Justice Green Motifs de jugement : l’honorable juge Green

Concurred in by: The Honourable Chief Justice Drapeau The Honourable Justice Quigg Souscrivent aux motifs : l’honorable juge en chef Drapeau l’honorable juge Quigg Counsel at hearing: For the appellant: James J. Matheson For the respondent: Cameron H. Gunn, Q.C. Avocats à l’audience : Pour l’appelant : James J. Matheson Pour l’intimée : Cameron H. Gunn, c. r. THE COURT The motion to direct the release and testing of an exhibit, as a preliminary step to a motion to introduce fresh evidence, is dismissed. The appeal against conviction is dismissed. The application for leave to appeal sentence is dismissed.

LA COUR La motion demandant une ordonnance de divulgation et d’analyse d’une pièce à conviction, comme mesure préliminaire à une motion en présentation de preuves nouvelles, est rejetée. L’appel à l’encontre de la déclaration de culpabilité est rejeté. La demande d’autorisation d’interjeter appel de la peine est rejetée. The judgment of the Court was delivered by GREEN, J.A. I. Introduction [ 1 ] The appellant was convicted by a judge of the Provincial Court on one charge of robbery under s. 344(1) (

b) of the Criminal Code , R.S.C. 1985, c. C-46, and one charge of aggravated assault under s. 268(1) . On the robbery conviction, the appellant was sentenced to nine years, less a credit of eight months for time spent in remand. On the aggravated assault, the sentence was five years, to be served concurrently. Mr. Ginnish now appeals his conviction, and seeks leave to appeal his sentence. For the reasons which follow, I would dismiss both the appeal against conviction, and the application for leave to appeal sentence. This is a companion case to Simon v. R. , 2014 NBCA 4 . Mr. Ginnish and Mr.

Simon were co-accused, and were tried and sentenced together. II. Background [ 2 ] Theodore Simon concocted an ill-conceived and poorly planned scheme to rob an acquaintance of his, one Matthew King. He was familiar with Mr. King’s residence, having been there often to purchase drugs.

[ 3 ] In the hours leading up to the May 26, 2011, robbery, Mr. Simon met with his son, Colton Simon, who at the time was sixteen years old. Mr. Simon invited his son to join him in carrying out his plan against Mr. King, and Colton Simon agreed. The two later met with a third individual, the appellant, who agreed to participate in the robbery as well. [ 4 ] Mr. Simon outlined the details of his plan to the others, and gave specific instructions on how the robbery was to be conducted. Mr. Simon was to go to Mr. King’s residence first, on the pretext of visiting the intended target.

Colton Simon and the appellant were directed to wait five minutes before going to the residence, and once Mr. King opened the door of his home, the two were to “beat him up”. Mr. Simon told his son to place a rock in a pair of socks, and use this improvised weapon to hit Mr. King over the head. [ 5 ] Prior to arriving at Mr. King’s residence, Colton Simon armed himself with a rock placed inside a pair of socks, as his father had instructed. The appellant was armed with a beer bottle, which he broke while en route to the house. [ 6 ] When the two assailants arrived at Mr.

King’s residence, Theodore Simon was already inside the home as planned. Colton Simon knocked on the door, and Mr. King answered. Colton Simon struck Mr. King on the back of the head with the rock, and Mr. King was pulled outside. Colton Simon then struck Mr. King on the back of the head a second time. [ 7 ] For his part, the appellant attacked Mr. King with the broken beer bottle, cutting him on the arm and the chest. While Mr. King was on the ground, the assault continued, with Colton Simon kicking Mr. King in the head and the appellant cutting him on the back with the broken bottle.

Colton Simon then placed Matthew King in a choke hold; Mr. King said “I give up,” after which he was released. [ 8 ] At this point, Theodore Simon exited the home. Colton Simon and the appellant fled the scene of the attack. Colton Simon was arrested soon thereafter, and the appellant and Theodore Simon some time later. Mr.

King’s injuries included a laceration on the back of his head, deep scratches on one arm and the side of his chest, and a V-shaped laceration on his back. [ 9 ] Theodore Simon’s role, in addition to developing the plan and recruiting the others to join him in carrying it out, was to steal from inside Matthew King’s residence while the attack was going on. The trial judge found Theodore Simon was not a mere decoy, but an active participant in the robbery. As for the appellant, the trial judge found him to be “very unreliable and his testimony untrustworthy and inaccurate”.

On sentencing, the trial judge further found that the appellant’s two prior convictions for robbery were an “obvious serious aggravating factor”, and that the appellant “personally inflicted serious injury” on Mr. King. III. Motion to Direct the Release and Testing of an Exhibit [ 10 ] The appellant sought to secure an order for the following: 1. To deliver certain exhibits, namely pieces of a broken beer bottle, to a designated policing agency; 2. To deliver the appellant’s fingerprints to said policing agency; 3.

That the designated policing agency test the exhibits for fingerprints, and compare any fingerprints found on the pieces of the broken beer bottle to the appellant’s fingerprints; and 4. That the designated policing agency then deliver the results of such testing and comparison to the appellant and counsel for the respondent. [ 11 ] The above was intended to be a preliminary step to the appellant bringing forward a motion for the introduction of

fresh evidence, predicated of course on the appellant’s contention that his fingerprints would not be found on the bottle in question beingborne out by the testing. [12] In his affidavit filed in support of this motion, the appellant maintains that on the night in question, he did not gointo the bar identified at trial and retrieve a beer bottle, did not break the bottle, did not hold the broken bottle by the neck, nor did hestrike the victim with a broken beer bottle. More to the point, perhaps, he maintains he did not even go to the victim’s residence on thenight of the attack.

He further maintains that he would expect his fingerprints to be on the exhibits if he did in fact break the bottle, holdit as described by the trial judge, and strike the victim with it repeatedly. [13] No fingerprint evidence was led at trial with respect to the pieces of broken beer bottle. On this motion, therespondent filed an affidavit of the Regional Director of Prosecutions for the relevant area of the province, in which the RegionalDirector confirms the exhibits in question were never analyzed for fingerprints.

In further support of its position, the respondent filed asecond affidavit, that of the police officer in charge of the Forensic Identification

Section of the Fredericton Police Force. With respect tothe appellant’s expectation that his prints would be found on the bottle if he had committed the acts as found by the trial judge, theofficer states, “Such an expectation is speculative”, given that “a person does not always leave fingerprints when he touches or grasps anobject”. [14] At trial, defence counsel used the lack of fingerprint evidence to her tactical advantage, arguing strenuously thatthe appellant’s fingerprints were not found anywhere which could connect her client to the attack on Mr.

King [see, for example, pages137-138 of the December 2, 2011 trial transcript]. [15] There having been no fingerprint evidence advanced at trial, it follows that, when the trial judge made hisdetermination of the appellant’s guilt beyond a reasonable doubt, his deliberations included consideration of the fact that the appellant’sprints were not on the bottle. [16] In order for the appellant to ultimately be successful in his bid to introduce fresh evidence, he would have tosatisfy the test set out by the Supreme Court in Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126(QL).

One recent application of the Palmer test by this Court can be found in R. v. McLaughlin, 2013 NBCA 28, 403 N.B.R. (2d) 358: […] The circumstances in which the interests of justice would permit the admission of fresh evidence have been identified in what iscommonly called the Palmer test, a test first articulated in Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759, [1979]S.C.J. No. 126 (QL), recently re-iterated in R. v. Hurley, 2010 SCC 18, [2010] 1 S.C.R. 637, and recently applied in New Brunswick in:Chen v. R., 2013 NBCA 7, [2013] N.B.J. No. 15 (QL); M.K. v. R., 2010 NBCA 71, 364 N.B.R. (2d) 166; and R. v.

Goulette, 2009 NBCA49, 350 N.B.R. (2d) 152. Essentially, the Palmer test holds that fresh evidence:

a) should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will notbe applied as strictly in a criminal case as in civil cases;

b) must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

c) must be credible in the sense that it is reasonably capable of belief; and

d) must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affectedthe result. [para. 5] [17] Applying the above test to the facts at hand, the appellant faced an insurmountable obstacle. He could neithersatisfy the first, nor the fourth, criterion. I will elaborate briefly. [18] It is well established that the first prong of the Palmer test is not enforced as rigidly in criminal law cases as incivil matters. That said, it has not been abandoned entirely.

In the case at hand, all involved in the trial were fully aware that there was nofingerprint evidence to adduce. In the words of the respondent, the Crown’s lack of fingerprint and other forensic evidence “became thefoundation of the appellant’s case at trial”. It is reasonable to infer defence counsel made a conscious decision, on tactical grounds, not topursue the actual fingerprint testing of the bottle fragments. [19] With respect to the fourth prong of the test, it cannot be said the so-called fresh evidence could reasonably beexpected to have affected the outcome of the trial.

As stated earlier, the trial judge was fully cognizant of the fact the Crown proffered noevidence of the accused’s fingerprints being on the bottle. Even if the test were to go ahead, at best the appellant would be able to

demonstrate his fingerprints were not on the bottle. Such results would illustrate no more than that, and the absence of fingerprints inand of themselves would in no way exonerate the appellant. In my opinion, the new evidence would be far from dispositive, and theoutcome would have been exactly the same, given all the other evidence before the trial court. [20] It is for the reasons set out above that I joined with my colleagues in dismissing the appellant’s motion from thebench. IV. Issues Advanced on Appeal [21] At the time the Notice of Appeal was filed, the appellant was representing himself.

The grounds of appeal asserted thereinwere therefore drafted without the aid of counsel. I would summarize the issues raised by the appellant as follows: 1. The appellant was denied a fair trial owing to the provision of late disclosure; 2. The verdict was unreasonable, and the appellant was therefore wrongfully convicted, given the following:

a) no “DNA fingerprinting” was conducted;

b) a witness whose testimony may have affected the outcome of the trial could not be found; and

c) the trial judge “took the word of a doped-up co-accused”. [22] I note at this point the appellant’s only written submission was contained within the Notice of Appeal. No furtherwritten submission was received, although counsel for the appellant did prepare, file and argue the motion referenced above. V. Law and Analysis A. Disclosure [23] There is little need to elaborate upon the Crown’s obligation to provide disclosure (see R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83 (QL)).

It is well recognized that full and timely disclosure is absolutelynecessary in order for an accused to properly answer and defend the case against him or her. [24] This Court, in R. v. Gallant, 2007 NBCA 36, 314 N.B.R. (2d) 125, per Larlee J.A., set out the approach to beadopted by the appellate court with respect to a disclosure issue. Extracting the relevant principles from R. v. Dixon, (SCC), [1998] 1 S.C.R. 244, [1998] S.C.J.

No. 17 (QL) she formulated the test to be met by an appellant in order to present a persuasiveand successful argument to the court: 1. establish a violation of the right to disclosure; 2. demonstrate on a balance of probabilities that the right to make full answer and defence was impaired as a result of the failure todisclose; 3. discharge this burden by demonstrating that there is a reasonable possibility that the non-disclosure affected the outcome at trial orthe overall fairness of the trial process. [para. 24] [25] In addressing the appellant’s assertions on point, the Crown offered a cogent and compelling response, as seen inthe following extract from its written submission:

Here the Appellant can meet, the Respondent submits, none of these burdens. This was a trial where material beyond the initialdisclosure was disclosed shortly before or during trial. Where this occurred counsel for the Appellant raised the issues and in each case,the disclosure issue was resolved by the trial Judge and the parties seemed content with the resolution. In each instance the trial Judgeensured that the Appellant was not disadvantaged by any late disclosure.

The trial Judge granted adjournments […], refused to admitevidence […], compelled can says […] or the Crown chose not to call evidence that was the subject of the late disclosure […]. TheAppellant cannot establish any breach of the right to disclosure nor an impairment of his right to make full answer and defence.[Amended Respondent’s Submission, para. 10] [26] I view the above as a fair and accurate

summary of what took place at trial, clearly supported by the transcript. Inmy opinion, this ground of appeal does not meet the test set out in Gallant, and therefore is without merit. B. Unreasonable Verdict and Wrongful Conviction [27] The Court has considered arguments of unreasonable verdicts leading to wrongful convictions on numerousoccasions. Among the more recent, in R. v. Smith, 2012 NBCA 99, 396 N.B.R. (2d) 367, Drapeau C.J.N.B. provided the followingoverview: […] Section 686(1)(a)(

i) of the Criminal Code provides an appeal against conviction may be allowed where the court of appealconcludes the verdict is "unreasonable or cannot be supported by the evidence". As is well known, that conclusion is unwarranted if thetrier of fact, acting judicially, could reasonably have rendered the verdict in question (see Mowry v. R., 2006 NBCA 18, 297 N.B.R. (2d)16, at para. 1). Of necessity, the application of that test requires the court of appeal to re-examine and to some extent reweigh andconsider the effect of the evidence produced at trial (see R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, [1987] S.C.J.

No. 51(QL)). Nonetheless, as Bell J.A., writing for the Court, underscored in Hubbard v. R., 2009 NBCA 28, 360 N.B.R. (2d) 1, at para. 11,"the function of this court is not to substitute itself" for the trier of fact and in discharging its responsibilities pursuant to s. 686(1)(a)(i),the Court must be "mindful of the advantageous position of the trial judge in assessing the credibility of the witnesses, including theaccused" (see R. v.

A.G., 2000 SCC 17, [2000] 1 S.C.R. 439). […] [para. 10] [28] To support the appellant’s contention that the trial judge rendered a verdict which was unreasonable, and as aresult, wrongfully convicted him, the appellant points to three specific alleged problems: no fingerprint evidence was tendered, apotential witness did not testify, and the trial judge accepted the testimony of the co-accused. C. Lack of Fingerprint Evidence [29] This point was canvassed above within the context of the motion to direct the release and testing of the brokenbeer bottle.

The lack of fingerprint evidence was relied upon by defence counsel at trial. The trial judge was clearly aware no suchevidence was before him, nor was it necessary for such evidence to be before him in order to render a guilty verdict. [30] In Smith, a similar argument was advanced. Drapeau C.J.N.B. addressed it thusly: I begin by summarily rejecting the ground of appeal founded upon the absence of “physical” evidence linking the appellant to the crimesparticularized in the 4-count Information. Evans v. R., 2005 NBCA 22, 291 N.B.R. (2d) 397 is on point.

In that case, the appellantcontended “there was no direct evidence relating to identification, forensic or physical, just circumstantial evidence”. In rejecting thatcontention, the Court stated: Neither direct evidence pertaining to identification, nor incriminating forensic and physical evidence are required for a proper finding ofguilt. Adequately cogent circumstantial evidence is sufficient: R. v.

Charemski, (SCC), [1998] 1 S.C.R. 679, perBastarache J., for the majority. [para. 5] [Emphasis added.] [para. 9] [31] The possibility of a guilty verdict, based upon the evidence before the trial judge, was not foreclosed by theabsence of fingerprint evidence. I find no basis for intervention based upon this ground of appeal.

D. Absence of Potential Witness [ 32 ] The appellant contends in his written submission that “a witness could not be found and this witness could have affected the judge’s verdict”. No argument was advanced before the Court to expand upon this contention, and we are left to speculate as to the exact identity of the missing witness. In its written submission, the respondent attempted to shed light upon this question, but again, it is by necessity based upon speculation. This ground of appeal is also without merit. E.

Reliance upon the Evidence of “A Doped-Up Co-accused” [ 33 ] The testimony of Colton Simon was central to the Crown case presented at trial. This reality and its ramifications were firmly understood by the trial judge, as seen in the following excerpt from his decision: THE COURT: […] my evaluation of their testimony and that of all witnesses called upon to testify in this case is of primary importance to its outcome.

I must pay particular importance to issues of credibility and reliability of the testimony given, not only because of its importance to the accused persons but also because the prosecution’s key witness, Colton Simon, actively participated in and was in fact a key component of both the robbery and the aggravated assault. He was an accomplice to these crimes and because of this his testimony may be suspect by that fact alone. So I must approach his testimony with great care and caution.

In doing so I must examine what confirmatory evidence exists to add to the necessary trustworthiness that would be required to convict. If Colton Simon’s testimony is found by me to be untrustworthy, then the prosecution’s case would necessarily fail and both Mr. Ginnish and Mr.

Simon would be acquitted because, as I say, without him the Crown basically has no case. [Transcript of Decision, December 22, 2011, pages 53-54] [ 34 ] Given this clear statement, it cannot be said the trial judge failed to appreciate the importance of Colton Simon’s testimony, nor the potential for problems associated with his evidence given his direct and active involvement in the crimes committed. [ 35 ] Later in his decision, the trial judge provided his assessment of Colton Simon’s credibility and the weight to be attached to Mr.

Simon’s testimony: THE COURT: I conclude that Colton Simon was a reliable witness who endeavoured to tell the truth about what happened. He was certainly not minimizing his implication and involvement in the assault. He had nothing to gain from being untruthful. He had already pled guilty to the aggravated assault and no charges were withdrawn against him. It would have been […] difficult from the outset to testify against his father, but he did.

Although somewhat easily influenced by capable counsel he still managed to hold up well under cross-examination. […] His evidence does not stand alone […] I therefore proceed on the basis that Colton Simon was telling the truth at this trial. [Transcript of Decision, December 22, 2011, pages 90-91] [ 36 ] Findings of credibility are owed considerable deference by appellate courts, and should not be interfered with absent a palpable and overriding error on the part of the trier of fact. No such error exists here. It was open to the trial judge to accept the evidence of Colton Simon, and he did.

Again, there is no basis for appellate intervention. F. Conclusion [ 37 ] In

summary, the guilty verdict rendered by the trial judge was amply supported by the evidence before him. His reasons for decision were clear and fulsome, and untainted by reversible error. I would not interfere, and would dismiss the appeal from conviction. VI. Leave to Appeal Sentence A. Standard of Review

[38] The law with respect to sentence appeals is well settled, and was reviewed in some detail in Simon. Appellateintervention is to be exercised cautiously, and only when specific criteria are met (see R. v. Steeves, 2010 NBCA 57, 360 N.B.R. (2d)88). The analytical framework provided therein requires the appellant to establish the presence of one or more of the following: an errorof law, an error in principle, or that the sentence is clearly unreasonable. B. Analysis of Sentence Imposed [39] In R. v. Basque (1999), (NB CA), 211 N.B.R. (2d) 273, [1999] N.B.J.

No. 211 (QL), thisCourt considered what constitutes a reasonable sentence for robbery. Drapeau J.A. (as he then was) states: A review of the relevant case law quickly reveals that the sentence imposed in this case differs markedly and unreasonably fromsentences usually imposed for robbery and disguise with intent offences committed in circumstances similar to the ones in this case.Consequently, the sentence is not consistent with the principle of similar sentences for similar offences.

This court has recognized thatrobbery is a very serious offence and that Parliament has deemed fit to acknowledge this gravity by providing that everyone whocommits robbery is guilty of an indictable offence and liable to life imprisonment. Indeed, this court has approved a range of sentencesfrom three to eight years of imprisonment in a penitentiary for this offence when committed by someone other than a young offender.See R. v. Matthews (1983), (NB CA), 45 N.B.R. (2d) 265 (C.A.) at 268 and R. v.

Vautour (1987), (NB CA), 76 N.B.R. (2d) 389 (C.A.). [para. 30] [40] In the present case, the sentencing judge imposed a sentence of nine years for the robbery, and five yearsconcurrent for the aggravated assault, less a credit for time spent on remand. Clearly, the nine-year sentence falls outside the rangeenunciated in Basque, but only just. As stated earlier, the sentencing judge properly took into consideration what he considered to be twosignificant aggravating factors: this was the appellant’s third conviction for robbery, and the appellant personally inflicted seriouspersonal injury upon the victim.

The appellant has not convinced me the sentence imposed is clearly unreasonable. To interfere on thebasis the sentence was for nine years and not eight would amount to “tinkering”, which is not the role of an appellate court. Further, suchinterference would diminish the importance placed by the sentencing judge on the aggravating factors in this case. C.

Section 348.1 Aggravating Circumstance – Home Invasion [41] In Simon, Theodore Simon argued he had been sentenced as though he had committed a home invasion, eventhough the sentencing judge expressly found the facts before him did not constitute a home invasion. The argument was unsuccessful, butthe Court did address the home invasion question at some length. I feel it both advisable and necessary to repeat those comments in thesereasons. [42] Parliament has seen fit to recognize the sanctity of one’s home through the enactment of s. 348.1 of the CriminalCode, which provides as follows:

348.1 If a person is convicted of an offence under

section 98 or 98.1, subsection 279(2) or

section 343, 346 or 348 in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence, (

a) knew that or was reckless as to whether the dwelling-house was occupied; and (

b) used violence or threats of violence to a person or property. 348.1 Le tribunal qui détermine la peine à infliger à la personne déclarée coupable d’une infraction prévue aux articles 98 ou 98.1, au paragraphe 279(2) ou aux articles 343, 346 ou 348 à l’égard d’une maison d’habitation est tenu de considérer comme une circonstance aggravante le fait que la maison d’habitation était occupée au moment de la perpétration de l’infraction et que cette personne, en commettant l’infraction :

a) savait que la maison d’habitation était occupée, ou ne s’en souciait pas;

b) a employé la violence ou des menaces de violence contre une personne ou des biens. [ 43 ] The Court of Appeal for Saskatchewan considered the elements of a home invasion in R. v. Campeau , 2009 SKCA 3 , [2009] S.J. No. 16 (QL) : […]

Section 348.1 creates a specific aggravating circumstance which is to be taken into account in addition to all other aggravating circumstances, when imposing a sentence for the offence of unlawful confinement contrary to s. 279(2), robbery contrary to s. 343, extortion contrary to s. 346, or break and enter contrary to s. 348(1) (“the listed crimes”), if any of these offences are committed at or in relation to a dwelling-house.

The essential elements of a home invasion are: (1) occupancy of a dwelling-house at the time one of the listed crimes was committed; (2) knowledge or recklessness on the part of the offender as to whether the dwelling-house was occupied; and (3) actual or threatened use of violence to persons or property. […] [para. 24] [ 44 ] Campeau makes reference to an earlier decision of the same court, R. v. Pelly , 2006 SKCA 60 , [2006] S.J. No. 332 (QL) , in which Cameron J.A. forcefully underscores the seriousness with which the courts, and Canadian society as a whole, view incidents such as these.

I concur with his assessment, which he expressed as follows: It must be clear to all that crimes of this nature strike at the very core of a peaceful and safe society, violate the security of the home, and often result in lasting physical and psychological injury. They are terrifying crimes, and it is imperative they be treated with the utmost seriousness in the interest of preserving public safety and upholding public confidence in the administration of justice.

So, all should know that the courts of this province, in step with those of others, will come down hard on violent crimes entailing “home invasions” in order to protect the public from the invasiveness and violence associated with them. [para. 57] [ 45 ] At the sentencing hearing, the Crown argued home invasion to be an aggravating circumstance which should be considered by the court in passing sentence on the appellant and Theodore Simon. However, the sentencing judge determined this fact situation did not meet the definition of home invasion.

Here is the pertinent passage in his decision: THE COURT: […] I agree with defence counsel that this was not a home invasion, nor was it tantamount to a home invasion. I don’t believe that the jurisprudence of home invasions applies to this case. I do consider as a factor in sentencing that Mr. King was at his home when the robbery occurred, and also that the accused intended the assault to occur at his home. I believe this to be an aggravating factor. Mr.

King should not have been attacked while he was at his residence, but he was pulled out of the home and he was attacked in the street, and for this reason I believe that this does not constitute what would otherwise be a home invasion. [Transcript of Sentencing, February 16, 2012, pages 45-46] [ 46 ] With respect, I disagree with the sentencing judge’s conclusion. In my opinion, this was a home invasion. The essential elements as required by the Criminal Code , and considered in cases such as Campeau , are all present. Although the assault took

place outside the victim’s home, that was only because his assailants pulled him outside once he had opened his front door. To suggest that if a victim opens the door to his or her home, is pushed backwards onto the floor, and is then further assaulted, it would amount to a home invasion, but if that same victim is instead pulled outside the home and subjected to the exact same assault with the exact same injuries, it would not be a home invasion, is not reasonable. Theodore Simon was in the victim’s home under false pretenses, for the express purpose of robbing him. Mr.

Simon’s accomplices, the appellant and Colton Simon, were to conduct the attack, and thus provide the opportunity for the robbery to take place. As such, this was a home invasion, and on this point, the sentencing judge was in error. In the circumstances, it has no bearing on the outcome of the present case, as the error was to the benefit of the appellant, and the Crown chose to abandon its cross-appeal on the issue. D. Conclusion [ 47 ] I have not been persuaded any of the criteria set out in Steeves have been satisfied.

As the Court stated in Simon , the decision on sentencing was “thoughtful, thorough, and fair”. I find no scope for appellate intervention, and would dismiss the application for leave to appeal sentence. VII. Disposition [ 48 ] The motion to direct the release and testing of an exhibit, as a preliminary step to a motion to introduce fresh evidence, was dismissed from the bench. I have set out herein my reasons for joining with my colleagues in reaching that decision. I would dismiss the appeal against conviction.

I would also dismiss the application for leave to appeal sentence. _______________________________ BRADLEY V. GREEN, J.A. WE CONCUR: ____________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK ____________________________________ KATHLEEN A. QUIGG, J.A.