Sex offender looks to appeal
Kyle Anthony Archer, 37, of Fredericton, admitted to sexually assaulting minor, making child porn, and agreed to five-year sentence, but is seeking to challenge case anyway
A Fredericton man in prison for sexually assaulting a pre-teen girl and recording the abuse is asking a court to let him appeal his case, even though he missed a deadline to do so.
But the Crown says there are no issues for the province’s top court to address and argues the offender is trying again to access illegal images he made of the child he victimized.
Kyle Anthony Archer, 37, was sentenced Feb. 28 in Fredericton provincial court to five years in prison on counts of sexual assault, creation of child pornography and unsafe storage of a firearm.
Court previously heard Archer sexually abused a girl between January 2019 and July 2021 in Fredericton, beginning when the girl was 10 years old. He also recorded some of his sexual encounters with the child.
The girl’s identity is protected by a court-ordered publication ban.
His convictions and sentence were the result of a plea deal between the Crown and defence, and Archer admitted to the charges and agreed with the facts, on the court record.
Nevertheless, Archer filed a handwritten notice of appeal with the Court of Appeal last month from Springhill Institution, the federal prison in Nova Scotia where he’s serving his sentence.
Notices of appeal have to be filed with the top New Brunswick court within 30 days of conviction and sentence, and Archer missed that deadline, filing his materials in May. So now he has to apply to the Court of Appeal for an extension of the time limit.
He appeared by video from prison before Court of Appeal Justice Kathleen Quigg on Monday for that purpose. Also appearing remotely were Shara Munn and Rachel Anstey, the prosecutors who handled his case.
Archer represented himself in Monday’s proceedings.
Quigg told him at the outset of the hearing that there were four criteria he had to meet for the appeal court to grant the extension of time.
He had to show he tried to file the notice of appeal in a timely manner, he had to explain the delay, he had to show the delay wouldn’t hinder the Crown’s ability to respond and he had to demonstrate there was merit to the appeal.
Archer said he’d been trying to get information on filing an appeal from officials at the Saint John Regional Correctional Centre immediately after his sentencing and continued those efforts when he was transferred to Springhill Institution in mid March, but no one seemed to know what he had to do to start the appeal process.
“It was just one delay after another after another after another,” he told Quigg.
“The day I got the form, I filled it out as much as I could … Nothing happened fast.”
As for the delayed filing prejudicing the Crown’s ability to answer to his appeal, Archer said he didn’t see how a little extra time would change the facts.
Comes down to merit
Quigg told him the first three parts of the test are pretty simple bars to meet, and what the intended appellant said about his challenges in filing a notice of appeal as a self-represented litigant from behind bars was reasonable.
The main hurdle he had to overcome, the judge said, was demonstrating his appeal has merit.
The Crown opposes the motion for extension of time mainly because it contends there’s no realistic basis for his appeal in the first place, Quigg said, and it was easy to see the government’s side in that position.
The appeal judge pointed out Archer was represented by three different lawyers throughout the provincial court process, from his detention to sentencing.
Furthermore, Qugg said, Archer pleaded guilty to the charges twice and agreed to the facts of the case on the court record - again, twice.
Archer said lawyer Melinda Ponting-Moore - duty counsel who was appointed as a friend of the court at the end of the case when Archer was representing himself - told him at sentencing it was too late to raise the issues he wanted to address and that they’d have to wait until an appeal.
“This may sound kind of stupid, but I don’t even know what an appeal is,” he said, adding the only thing he knew was there was a time limit to file one.
“It seems like my rights were violated.”
Quigg said Archer’s notice of appeal contends he didn’t get a fair trial and that he wasn’t able to make full answer and defence - mainly because he claims he wasn’t given full disclosure by the Crown.
But the record shows defence lawyer Adrian Forsythe did receive that disclosure and even spent hours reviewing it with Archer, she said.
“Well, there was things missing,” the inmate countered, though he was never clear on what the alleged omissions were.
Archer said the point of his appeal wasn’t to overturn his conviction or reduce his agreed-upon sentence, but rather to give him the chance to review evidence in the case he said was denied to him.
Intent on images
Ultimately, he kept focusing on the “representative sample” of child pornography he’d made of the victim that was filed with the lower court for sentencing.
He argued he hadn’t had the chance to review those images closely and suggested there may have been important evidence in those files.
Prosecutor Shara Munn told the court that speaks to what appears to Archer’s true goal: regaining access to the illicit material he produced during the course of his sexual abuse of the victim.
“That’s not something we can hand over to Mr. Archer,” she said.
Even his defence counsel wasn’t allowed to retain those images once the case was concluded, Munn said.
Archer denied he was trying to get his hands on those images.
However, during his sentencing hearing, the offender reiterated his request to view the porngraphic material, and he has challenged a Crown motion in provincial court to have items seized during the investigation forfeited to the Crown.
Among the items are the high-end camera he used in his crimes and storage devices.
Furthermore, Archer filed a small-claims action against the Fredericton Police Force and the mother of the victim last summer, seeking the return of his belongings, including images he argued were his copyrighted material.
The prisoner also argued Monday he wasn’t allowed to speak in court, but Munn said he was given plenty of time to address the court at the conclusion of his sentencing hearing.
Archer countered he was referring to being silenced earlier in the case, not at sentencing.
He said his guilty pleas were the only avenue open to him in the case.
“You don’t have a choice. You have to go with it,” he said.
The intended appellant reiterated his desire to delve into the disclosure.
“I know there was things that I did not get,” he said.
“I’m not bringing it up because I’m trying to waste time.”
He said he just wants a court to declare some evidence was held back, not because he’s after a lighter sentence, but because he wants an acknowledgement that his case was mishandled.
Quigg reserved her decision, but said she’d render it by the end of the week.
While Archer was sentenced in February to five years for his crimes, he was given a credit of almost 2½ years for time served on remand.
Given the statutory-release protocols Correctional Service Canada is mandated to follow, he’ll likely be released within the next year.
Don MacPherson can be contacted at ftonindependent@gmail.com.
Give nothing but a longer sentence
Disgusting, copy write material????