No chance of success in sex offender’s appeal
Court of Appeal judge issued reasons recently for why she denied federal prisoner Kyle Anthony Archer’s request for extension of time to file his appeal
A judge with New Brunswick’s top court says she denied a Fredericton sex offender’s request for extra time to file an appeal in his case because it was meritless.
New Brunswick Court of Appeal Justice Kathleen Quigg denied a motion last month filed by Kyle Anthony Archer, 37, of Fredericton, to grant him extra time to file an appeal after he missed a deadline.
The judge said she’d issue reasons for her ruling at a later date, and in a written decision issued July 13, she detailed why she dismissed Archer’s motion.
The offender was sentenced to five years in prison in February for sexual assault, production of child pornography and improper storage of a firearm.
The charges stemmed from long-term sexual abuse of a pre-teen girl. She was 10 years old when it began in January 2019, and it continued until July 2021, when he was arrested.
The girl’s identity is protected by a court-ordered publication ban.
The child-pornography offence stemmed from him photographing and recording the abuse.
“The primary basis for [Archer’s] motion to extend the time for filing the notice of appeal is that he did not receive or have the ability to review his disclosure,” Quigg wrote.
But her review of the provincial court record demonstrated the opposite. Quigg said it’s clear the Crown provided full disclosure of the evidence against Archer at the outset of the case.
“Throughout the proceedings, [Archer’s] counsel repeatedly confirmed to the court he had reviewed all relevant disclosure with {Archer],” the appeal judge wrote.
“On June 28, 2022, [his] counsel filed a motion for direction with the provincial court wherein he confirmed having spent over 15 hours with [Archer] reviewing all relevant disclosure. On June 29, 2022, the motion for direction was heard, and as a result [Archer’s] counsel undertook to meet with his client in order to again review the disclosure.”
It appeared Archer’s obsession with the disclosure stemmed from an effort to view the child-pornography images included therein.
“In his motion for direction, [Archer’s] counsel expressed concern that his professional obligations conflicted with [Archer’s] ongoing request to have access to his disclosure, including child pornography,” Quigg wrote.
“These concerns eventually led to counsel’s request to be removed as counsel of record. The judge granted that request.”
Once he was no longer represented, court heard, Archer immediately requested his disclosure from the Crown’s office.
“The Crown then wrote to provincial court to request an appearance to seek direction on the issue of disclosure,” the appeal judge wrote.
“It had growing concerns regarding [Archer’s] constant attempts to gain access to his disclosure, including the child pornography contained therein.”
During an appearance in provincial court Feb. 16, Archer reiterated his request to access his disclosure.
“Specifically, he stated he wanted access to the representative sample of child pornography contained in the file,” Quigg wrote.
“Throughout the proceedings on that date, the judge made it clear that [Archer] would not be receiving the child pornography.”
During arguments for the extension of time, Archer said he wasn’t looking to alter his sentence or withdraw his guilty pleas, only a declaration from the court he didn’t get access to his disclosure and that his rights were violated
The appeal judge noted that while the Crown conceded Archer had legitimate reasons for the delays in filing his notice of appeal, it had argued the extension for time should be denied because the appeal was without any merit and stemmed mainly from Archer’s intent to get his hands on the pornographic images of his victim.
Quigg wrote everything on the record showed the lower court went above and beyond to ensure Archer was treated fairly and that his rights were respected.
“In summary, [Archer] was represented by three different lawyers throughout the provincial court proceedings. He pled guilty to the charges twice. He agreed to the facts on the record twice. Two inquiries were held to confirm [Archer’s] guilty pleas,” the appeal judge wrote.
“I have listened to the audio recording of the sentencing hearing. I did not discern any error which persuades me, in the interests of justice, to extend the time for the filing of the notice of appeal. The motion is dismissed.“
Archer was sentenced to five years in prison in February for his crimes. However, given how long he was on remand up to that point, he was given a 2½-year credit for that time.
Don MacPherson can be contacted at ftonindependent@gmail.com.