Sex offender agrees to forfeiture - maybe
Kyle Anthony Archer, 38, of Fredericton, serving five-year prison term for sexually abusing pre-teen girl, but has repeatedly insisted on viewing, return of seized items
An admitted sex offender whose appeal was denied earlier this year appeared finally to accept the forfeiture of various items seized by police when he was arrested.
But at the conclusion of a hearing Thursday, he seemed to baulk at the notion that items he used in his crimes would be destroyed.
Kyle Anthony Archer, 38, of Fredericton, is serving a five-year prison sentence imposed in late February for sexual offences.
He pleaded guilty last year to sexually assaulting an underage girl, making child pornography that showed that sexual abuse and storing a firearm improperly.
Archer admitted he sexually abused a pre-teen girl - whose identity is protected by a court-ordered publication ban - beginning in January 2019 and lasting until July 2021, when he was arrested.
The girl was 10 years old when the abuse began.
Despite being sentenced and seeing the New Brunswick Court of Appeal declining to hear his appeal, Archer was back in Fredericton provincial court Thursday for the continuation of a forfeiture hearing.
Such forfeiture proceedings are typically simple procedural matters handled at the conclusion of a sentencing hearing, but Archer objected to the Crown keeping numerous items that were seized as a result of his arrest and the investigation.
Among the items he wanted returned to him included computer equipment and digital storage devices, some of which had been used in the sex crimes he committed against the young victim.
Furthermore, during his contentious sentencing hearing and subsequent application to appeal his case, Archer kept asking courts to allow him to review evidence included in the disclosure of his Crown file - including the pornographic images he’d captured of the girl he traumatized.
Time and time again, judges told him he wasn’t getting access to such material.
‘He doesn’t want to belabour this’
With that backdrop in mind, Archer appeared in custody before Judge Lucie Mathurin on Thursday to deal with the draft forfeiture order prepared by prosecutors Shara Munn and Rachel Anstey.
Archer was representing himself, but Fredericton defence lawyer Melinda Ponting-Moore also attended the proceedings, acting as a friend of the court to advise Archer.
Ponting-Moore noted that revised draft orders - one listing the items to be forfeited, the other detailing which items would be returned to Archer - had been prepared, and that a number of items had been removed from the forfeiture order and added to the return list instead.
“He doesn’t want to belabour this, so he tells me,” the lawyer said. “He strongly expressed the desire not to return [to court] again.”
Court heard, though, that Archer felt there were items missing from both lists that he’d seen mentioned in his disclosure, but he doesn’t have that documentation anymore so he couldn’t compare them or specifically recall what might be absent from the lists.
Mathurin told him his disclosure was never put before the court, so she had no way to review it to see if there was anything to his concerns.
“What items have been seized never made it to court,” the judge said, noting she could only rely on the information in the draft orders as prepared by the Crown prosecutors’ office.
But Mathurin said her review of the draft orders appeared to be in order and consistent with forfeitures and returns in such cases.
For example, she said, a rifle, shotgun and ammunition listed in the forfeiture order were proper, as they were involved in his crimes. Furthermore, the judge said, Archer is now subject to a firearms prohibition, so it’s illegal for him to possess such items anyway.
“You’re not going to have access to any of those items,” Mathurin said.
Among the other items on the forfeiture list include an LG smartphone, two tablet devices, eight digital storage devices, an Asus laptop computer, a knife in a sheath, a tripod, lubricant, handcuffs and a journal.
Additional items deemed returnable
Munn told court Thursday that due to Archer’s initial opposition to the original forfeiture, the investigation officer and a digital forensic specialist conducted a further review and analysis of the items seized and earmarked for forfeiture and destruction.
As a result, she said, some of the items were determined to be benign or otherwise unconnected to the offender’s crimes.
For example, the prosecutor said, what appeared to be a USB thumb drive turned out to be a transmitter for an Xbox gaming console.
Also on the return list filed with the court Thursday were USB drives and memory cards, a Dell laptop computer, a digital camera, a 500 GB hard drive, two camera lenses, a blue binder with a camera manual and a backpack.
Mathurin told Archer that based on the material before her, she’s confident everything is in order and that the prosecution has ensured the proper items will be returned and that items he shouldn’t get back will be forfeited to the Crown.
“There’s nothing underhanded going on here. I wouldn’t allow that to happen,” the judge said.
“If you are saying everything is fine…” Archer said.
“I am satisfied at this point,” Mathurin said.
“I’m ready to be done with it,” the offender said.
Ponting-Moore, after conferring with Archer in the courtroom, said he accepted the draft orders as presented Thursday.
But when it was reiterated that the forfeited items would be destroyed, Archer appeared to have an issue again. He again spoke with Ponting-Moore, and at one point, he said to her, “So I can do that after.”
When Mathruin said, “I’ll sign the order,” Archer laughed, appearing to have a problem with what was happening.
The judge told him forfeited items aren’t destroyed immediately, that there’s a period where they’re held, so if Archer so chose, he could appeal the forfeiture.
“This ends this matter in relation to provincial court,” Mathurin said.
Rough and unusual road
Archer’s entire provincial court case was bizarre and drawn out. He went through three defence lawyers over the course of the case, and the original judge presiding over his sentencing hearing in the spring of 2022, Judge Kenneth Oliver, wasn’t prepared to accept the jointly recommended five-year sentence offered by the Crown and defence.
The sentencing was further delayed when Oliver was suspended from the bench in October 2022, which led to Mathurin taking over the case.
While acknowledging the sentence was on the low end given the seriousness of Archer’s crimes, she accepted the joint recommendation, noting that it was within the established range.
Even though he pleaded guilty and agreed to the five-year term, Archer filed an application for leave to appeal with the New Brunswick Court of Appeal.
During arguments held earlier this year to determine if he’d be allowed to appeal, Archer told the province’s top court that he didn’t necessarily want to withdraw his pleas or even alter his sentence.
Instead, he claimed he was never given a chance to review his disclosure in detail, and he wanted access to it again, including the items seized.
Specifically, he said he wanted to review the representative samples of the digital images presented to the provincial court - showing his abuse of the victim - in his sentencing hearing.
In written decisions issued this summer, Court of Appeal Justice Kathleen Quigg denied leave to appeal, noting the court record showed Archer had every opportunity to review his disclosure.
She found Archer was clearly trying to regain access to the child pornography he’d made, and noted there was no error in the case that merited an appeal of any kind.
Don MacPherson can be contacted at ftonindependent@gmail.com.
A waste of the courts time. Destroy the items, take a picture of them give him the pic and tell him it's over!!
He doesn't acknowledge the sick f*** he really is and the damage he has done to that little girl. FIVE years he gets to a life time torture mentally and physically i hope she has a good family support and mental services.