Top N.B. court won’t hear sex offender’s appeal

Crown was concerned Kyle Anthony Archer, 37, of Fredericton, was trying to view pornographic images he’d created of his sexual abuse of pre-teen girl

A federal inmate serving time for sexually abusing a pre-teen girl in Fredericton and photographing the abuse won’t be allowed to appeal his case.

Kyle Anthony Archer, 37, of Fredericton, was sentenced in February to five years in prison for sexually assaulting a minor, making of child pornography by capturing that sexual abuse and storing a firearm improperly.

The victim’s identity is protected by a court-ordered publication ban.

Kyle Anthony Archer (Photo: Don MacPherson/The Fredericton Independent)

During his sentencing hearing, court heard that the sexual abuse to which Archer subjected the girl occurred between January 2019 and July 2021 in Fredericton, beginning when she was 10 years old. 

While Archer pleaded guilty to those crimes and agreed to a jointly recommended prison sentence of five years, he filed a notice of appeal with the Court of Appeal in May.

However, that was almost two months after the filing deadline, and he appeared by video before the province’s top court Monday to argue that he should be granted an extension of time to file that notice of appeal.

The Crown opposed the motion.

Court of Appeal Justice Kathleen Quigg heard the motion Monday, and she issued a brief written decision the following day, which was published online Thursday.

“The motion to extend the time in which to file a notice of appeal is dismissed. Reasons will follow,” she wrote.

During Monday’s hearing, Quigg told the intended appellant there were four criteria he had to meet for his request for a time extension to be granted: 

- demonstration he tried to file it in a timely manner, 

- a reasonable explanation for the delay, 

- an indication the Crown’s ability to respond to his appeal wouldn’t be affected by the delay

- and clear issues that showed his appeal had merit.

The appeal judge said the first three elements weren’t difficult to establish, but that the fourth was Archer’s main hurdle.

Archer seemed incapable of articulating what he wanted out of his appeal. He conceded he pleaded guilty willingly and said he wasn’t looking to have his sentence altered.

Instead, he said he was looking to gain access to the evidence that was gathered against him, claiming he hadn’t been able to review all materials before he pleaded guilty and was sentenced.

He specified he wanted to review the representative sample of the offending images shown to the sentencing judge to prove he’d created child pornography.

Archer told Quigg on Monday what he wanted from the Court of Appeal was a declaration that he was denied access to some of his disclosure and that his rights were violated, rather than seeing his convictions overturned or sentence reduced.

Shara Munn, one of the prosecutors who handled the original case through a protracted process that saw Archer represented by several different defence lawyers, argued Monday that the offender appeared to be trying to view the images he captured of his terrible abuse of a vulnerable child.

Archer isn’t entitled to access that material, she said, and her office can’t turn the photos over to him.

The offender is serving his five-year prison sentence at the Springhill Institution in Nova Scotia.

However, that term was reduced when he was sentenced by almost 2½ years to give him credit for time he’d already served while on remand.

Furthermore, given potential parole and mandatory requirements for statutory releases of inmates ahead of the completion of their sentences, it’s likely Archer will be out of prison within the next year.

Don MacPherson can be contacted at ftonindependent@gmail.com.