Fredericton sex offender parts ways with third lawyer
Kyle Anthony Archer, 37, is awaiting sentencing for sexually assaulting a pre-teen girl between 2019 and 2021, and making recordings of the abuse
A Fredericton man who sexually abused a pre-teen girl for a year and a half has soured his rapport with his third defence lawyer as an undetermined prison sentence looms over him.
Kyle Anthony Archer, 37, formerly of Colter Court, pleaded guilty in early 2022 to sexually assaulting a girl between January 2019 and July 2021, and to making child pornography depicting that sexual abuse.
The girl’s identity is protected by a court-ordered publication ban.
Archer’s sentencing has been postponed repeatedly for a variety of reasons, some of which stemmed from complaints he filed against his defence lawyer, Adrian Forsythe, and prosecutors Rachel Anstey and Shara Munn.
The case was set to wrap with a decision on sentencing Jan. 13, but at that time, Forsythe asked to be removed as the offender’s defence counsel, citing a breakdown in the solicitor-client relationship.
That prompted another delay, and the matter was back before provincial court Judge Lucie Mathurin on Wednesday.
Forsythe said the reason for his request to be removed was a letter that Archer had sent to Karen Lee, director of specialized prosecutions with the province’s Crown prosecutors service.
“Mr. Archer has expressed that he does not trust me,” the defence lawyer said, noting there’s been an “irreparable breakdown” of their relationship.
Forsythe said Archer made other statements about him in that letter, though he declined to detail them or to put the letter before the court, as he didn’t want to compromise Archer’s rights by making them public.
“I’m not comfortable acting [as his counsel], knowing about those statements,” he said.
Anstey said Archer does have the right to counsel of his choice.
“I didn’t even know about this,” Archer said when asked how he felt about Forsythe’s motion.
He said he didn’t make the statements to Forsythe, but he noted the friction between them goes back many months.
One lawyer after another
Archer filed a formal complaint against Forsythe with the Law Society of New Brunswick last year, but when that led to the possibility the defence lawyer might have to be removed from the case, Archer withdrew it.
Mathurin said while she’s concerned about ongoing delays with the sentencing process, it’s clear things have broken down between lawyer and client.
“I see no reason why not to grant this motion,” she said, removing Forsythe from the record.
However, the judge noted Forsythe is the third lawyer who’s been assigned to Archer’s case, as he’d previously been represented by Legal Aid New Brunswick staff lawyers Angèle Normand and Edward Derrah.
Anticipating that Forsythe could be removed from the record, Mathurin had arranged for legal aid to provide duty counsel for Archer on Wednesday.
That lawyer - Melinda Ponting-Moore - spoke with Archer during a recess Wednesday after Forsythe was removed from the case. She said Archer wants to proceed to sentencing, but not right away.
“It seems to me that Mr. Archer has wanted an opportunity to speak for himself,” Ponting-Moore said.
However, she added that he accepts the facts of the case and doesn’t plan to challenge the elements of the offence.
Ponting-Moore said while the offender doesn’t take issue with the joint recommendation on sentence before the court - five years in prison - he has concerns about possible ancillary orders or conditions that could come into play after his release.
Archer said he’d need time to prepare what he wants to convey to the court.
Mathurin adjourned the sentencing hearing to Feb. 28.
Tumultuous history
The case is one marked by several unusual turns of events over the past 10 months.
Presiding over Archer’s original sentencing hearing in May was Judge Kenneth Oliver, who expressed concerns that the joint recommendation of five years wasn’t sufficient to meet key principles of sentencing, namely deterrence and denunciation of Archer’s horrific abuse of a child.
Oliver asked Crown and defence counsel for further submissions on the issue, and the matter was delayed repeatedly.
Then the case went off the rails when Oliver was suspended from the bench Oct. 3 due to judicial misconduct in an unrelated trial. Since he heard facts and submissions on sentencing and convicted Archer, he was seized with the case.
That required Crown counsel to apply under the Criminal Code of Canada to restart the case from scratch, eventually leading to Mathurin taking over the file. Transcripts of the previous sentencing proceedings before Oliver were prepared, and Mathurin reviewed them to get up to speed on the case.
In another unusual development, Archer, while his sentencing was pending last summer, filed a lawsuit in small claims court against his victim’s mother and the Fredericton Police Force.
In that filing, he demanded the return of and/or compensation for his property that he asserted were in the possession of the woman and the police.
That case is still pending before a small-claims arbitrator.
Don MacPherson can be contacted at ftonindependent@gmail.com.
I think this guy is playing the "system" to the bitter end... Pretty sure he is aware that his sentencing will put him in the federal system, and he will NOT fare well once he is there.