2014 NBCA 66, 2014 NBCA 66

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 40-14-CA J.L. APPELLANT J.L. APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE J.L. v. R., 2014 NBCA 66 J.L. c.

R., 2014 NBCA 66 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Deschênes The Honourable Justice Quigg CORAM : l’honorable juge en chef Drapeau l’honorable juge Deschênes l’honorable juge Quigg Appeal from a decision of the Provincial Court: January 27, 2014 (conviction) April 7, 2014 (sentence) Appel d’une décision de la Cour provinciale : le 27 janvier 2014 (déclaration de culpabilité) le 7 avril 2014 (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: October 15, 2014 Appel entendu : le 15 octobre 2014 Judgment rendered: November 20, 2014 Jugement rendu : Le 20 novembre 2014

Counsel at hearing: J.L. appeared in person For the respondent: Pierre F. Roussel, Q.C. Avocats à l’audience : J.L. a comparu en personne Pour l’intimée : Pierre F. Roussel, c.r. THE COURT The application for leave to appeal conviction andsentence is denied. LA COUR La demande d’autorisation d’interjeter appel de ladéclaration de culpabilité et de la peine est rejetée. The following is the judgment delivered by THE COURT [1] The appellant, 47, pled guilty in Provincial Court to an un-particularized sexual assault onF.M., the eight-year-old daughter of his common-law spouse (s. 271(

a) of the Criminal Code), and to touching the young girl for a sexualpurpose with his hands, tongue and penis (s. 151(a)) during the period from June 1, 2011 to May 8, 2012. Early into the sentencinghearing, the appellant contested the Crown’s allegation that he had penetrated F.M.’s vagina (with his penis and a finger) and her anus(with his penis). [2] As is well known, where there is a conflict with respect to circumstances relating to theseriousness of the offence, the Crown bears the onus of proving the aggravating facts beyond a reasonable doubt: R. v. Gardiner, (SCC), [1982] 2 S.C.R. 368.

Following a hearing designed to settle the factual dispute for sentencing purposes, the judgerejected the appellant’s sworn denial of vaginal and anal penetration, rejected F.M.’s evidence that he penetrated her vagina with hispenis, but accepted her testimony that he penetrated her vagina with a finger and her anus with his penis.

In the result, the judge foundthe Crown’s version of key events and more serious description of the underlying sexual assault had been substantially proven beyond areasonable doubt. [3] On the basis of that finding and other circumstances, some aggravating (particularly thevictim’s young age and the appellant’s significant, albeit unrelated, prior criminal record), some mitigating (e.g. the plea of guilty and theappellant’s alcoholism), the judge sentenced the appellant for the offence of sexual assault to a jail term of 60 months, minus a credit of11 months for pre-disposition detention.

She added a concurrent one-year term for the offence of sexual touching. Orders also issuedproviding for a lifetime ban on the possession of weapons, the seizure of bodily substances for DNA purposes and registration under theSexual Offender Registry for a period of 20 years. [4] The appellant appeals both conviction and sentence for the offences of sexual assault andsexual touching.

While acknowledging he admitted in his testimony to sexually assaulting (fellatio, cunnilingus and vaginal touching)and sexually touching F.M. and that he was highly intoxicated at the time of the offences, the appellant persists in contesting theallegation that he penetrated her, whether vaginally or anally. [5] In our view, the appellant’s plea of guilty forecloses intervention with respect to bothconvictions. That is so because nothing in the record suggests the plea entered in first instance is invalid or unreliable as proof of theappellant’s guilt in respect of each charge.

Indeed, as noted, the appellant admitted in his testimony to sexually assaulting and sexuallytouching F.M. His objection in first instance targeted principally the Crown’s allegation that he penetrated F.M. vaginally, with a fingerand his penis, and anally, with his penis. [6] Leave of the Court is required for an appeal against a conviction resulting from a guilty plea.For the reasons outlined above, leave is wholly inappropriate and it is denied. That takes us to the application for leave to appealsentence. The appellant contends several errors tainted the sentencing hearing in Provincial Court.

Only two of those allegations of error

warrant comment. [ 7 ] First, the appellant contends his rights were violated when the Crown failed to provide, as he had initially requested, disclosure documents translated from French to English, the language of his choice in the proceedings. There is no merit to this ground of appeal. The record shows the Crown was prepared to provide the requested translated documents but that, on January 23, 2013, the appellant, through counsel, withdrew his request in open court.

At that time, defence counsel, who like the appellant is bilingual, confirmed she was satisfied with production of the documents in their original language. No further request for translation was made before or at the sentencing hearing. [ 8 ] Second, the appellant takes issue with the quality of the legal services he was provided in first instance.

In that regard, he alleges his counsel should have called a medical doctor to testify regarding the issue of digital and penile penetration, and should have filed additional “medical documents” that, he claims, would have buttressed his case for leniency at the sentencing hearing. There is no merit to this complaint. Nothing in the record would justify this Court second-guessing defence counsel’s work or casting doubt over the reasonableness of the credibility and other fact findings made in first instance: R. v. G.D.B. , 2000 SCC 22 , [200 0] 1 S.C.R. 520 and Smith v.

R. , 2012 NBCA 99 , 396 N.B.R. (2d) 367 , at paras. 23-25 . Indeed, all indications point to the Provincial Court judge having: (1) conducted the proceedings in a manner that fully respected the appellant’s rights; and (2) correctly applied the law to the facts as she found them. That being so, and applying the standard articulated in Steeves v.

R., 2010 NBCA 57 , 360 N.B.R. (2d) 88 , the application for leave to appeal sentence is dismissed. [ 9 ] We close the proceedings by recording that at the outset of the hearing on appeal, the Court dismissed the appellant’s motion for: (1) an order directing the translation of the disclosure package (essentially the videotaped statement of the victim); and (2) an order appointing counsel pursuant to s. 684. In our judgment, the appellant simply did not make the case for the relief sought. ____________________________________ J.

ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK ____________________________________ ALEXANDRE DESCHÊNES, J.A. _____________________________________ KATHLEEN A. QUIGG, J.A.