R. v. Cormier (R.J.),

• Jurisdiction: New Brunswick
• Judge: Larlee, Richard and Bell, JJ.A.
• Neutral Citation: 2012 NBCA 76
• Citation: (2012), 393 N.B.R.(2d) 118 (CA),2012 NBCA 76,393 NBR (2d) 118,[2012] NBJ No 320 (QL),[2012] N.B.J. No 320 (QL),393 N.B.R.(2d) 118,393 NBR(2d) 118,(2012), 393 NBR(2d) 118 (CA)
• Date: 10 April 2012
• Court: Court of Appeal (New Brunswick)

R. v. Cormier (R.J.) (2012), 393 N.B.R.(2d) 118 (CA);

    393 R.N.-B.(2e) 118; 1017 A.P.R. 118

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] N.B.R.(2d) TBEd. SE.044

Renvoi temp.: [2012] N.B.R.(2d) TBEd. SE.044

Romeo Jacques Cormier (appellant) v. Her Majesty the Queen (respondent)

(121-11-CA; 2012 NBCA 76)

Indexed As: R. v. Cormier (R.J.)

Répertorié: R. v. Cormier (R.J.)

New Brunswick Court of Appeal

Larlee, Richard and Bell, JJ.A.

August 30, 2012.

Summary:

Résumé:

The accused was convicted of (1) kidnapping (s. 279(1)(a) of the Criminal Code); (2) unlawful confinement (s. 279(2)(a)); (3) theft (s. 343(b)); (4) assault with a weapon (s. 267(a)); (5) sexual assault (s. 271(1)(a)); and (6) uttering a death threat (s. 264.1(2)(a)). He was sentenced to 18 years' imprisonment, less time served, as well as ordered under s. 743.6 that he be ineligible for parole until he had served one-half of that term. The accused appealed the convictions and applied for leave to appeal the sentence.

The New Brunswick Court of Appeal dismissed the appeal and the application.

Civil Rights - Topic 4620.1

Right to counsel - Right to effective assistance by counsel - The accused abducted the victim from a mall parking lot - Over the ensuing 27 days, the accused bound and sexually assaulted the victim, forced her to consume non-prescription drugs and stole personal items belonging to her - He was convicted of (1) kidnapping; (2) unlawful confinement; (3) theft; (4) assault with a weapon; (5) sexual assault; and (6) uttering a death threat - The accused appealed the convictions, asserting that his counsel at trial was incompetent - The New Brunswick Court of Appeal dismissed the appeal - The trial transcripts revealed that the accused testified, in rather prolix answers, to simple questions and embarked upon subject matters his lawyers no doubt preferred he would have avoided - The record did not support the accused's assertion that his counsel limited him in his ability to make full answer and defence - The transcript did not reveal any incompetence on the part of the plaintiff's counsel - They performed admirably in very trying circumstances with a difficult client - See paragraphs 5 to 9.

Criminal Law - Topic 4322.5

Procedure - Jury - General - Triers - General - The accused abducted the victim from a mall parking lot - Over the ensuing 27 days, the accused bound and sexually assaulted the victim, forced her to consume non-prescription drugs and stole personal items belonging to her - He was convicted of (1) kidnapping; (2) unlawful confinement; (3) theft; (4) assault with a weapon; (5) sexual assault; and (6) uttering a death threat - The accused appealed the convictions, asserting that the trial judge acted inappropriately, even flirtatiously, toward one of the juror triers - The argument was based upon a comment ("I would marry you right now") by the trial judge to a prospective juror trier, Ms. Drake - The New Brunswick Court of Appeal dismissed the appeal - While the mention of marriage was indeed out of place, it was clear that the judge was making reference to his having accidentally called Ms. Drake "Mrs. Holder," which was the surname of the male juror trier he had been questioning immediately before addressing Ms. Drake - The trial judge corrected himself immediately, and then began to question the potential trier as to whether she felt she should be exempted - The trial judge's interjection about marriage, followed by the words "excuse me" and a reiteration of Ms. Drake's correct name, appeared to be a reference to his having erroneously identified her as though she were the wife of the previous trier - Although out of place, this comment appeared to have been an attempt at humor at the trial judge's own expense, rather than a suggestive or flirtatious comment for the benefit of Ms. Drake - It was also important to note that defense counsel raised no objection to the conduct of the judge in this regard, and expressed satisfaction with the process as it had unfolded - This was consistent with the comment having been an attempt at levity, rather than an inappropriate flirtation - Further, the accused made no allegation of any contact between the trial judge and Ms. Drake outside the courtroom, the juror triers were randomly chosen, and the comment made by the trial judge was not related to any issue in the case - More importantly, Ms. Drake never became a juror - The appearance of justice and fairness at the accused's trial was not harmed by the trial judge's comment to Ms. Drake - See paragraphs 10 to 18.

Criminal Law - Topic 4375.5

Procedure - Charge or directions - Jury or judge alone - Directions re prior misconduct or convictions - The accused abducted the victim from a mall parking lot - Over the ensuing 27 days, the accused bound and sexually assaulted the victim, forced her to consume non-prescription drugs and stole personal items belonging to her - He was convicted of (1) kidnapping; (2) unlawful confinement; (3) theft; (4) assault with a weapon; (5) sexual assault; and (6) uttering a death threat - The accused appealed the convictions, asserting that the trial judge erred during his final jury instructions by emphasizing the accused's criminal record without giving sufficient warning as to its limited use - The New Brunswick Court of Appeal dismissed the appeal - The references to the accused's admissions of "law defiance" and "dishonesty" were not sprinkled throughout the judgment in order to malign him; rather, on each occasion they prefaced the trial judge's explanation of credibility and his instructions regarding R. v. D.W. (1991 SCC) which instruction was largely credibility driven - In light of the sufficient general warning and the context of each subsequent reference to the accused's criminal record, the overall charge was sufficiently adequate to warn the jury against the misuse of the accused's criminal record - While it would have been preferable to repeat the caution each time the accused's record and life of dishonesty were mentioned, failure to do so did not constitute reviewable error - See paragraphs 19 to 23.

Criminal Law - Topic 4412

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Opinion respecting guilt - The accused abducted the victim from a mall parking lot - Over the ensuing 27 days, the accused bound and sexually assaulted the victim, forced her to consume non-prescription drugs and stole personal items belonging to her - He was convicted of (1) kidnapping; (2) unlawful confinement; (3) theft; (4) assault with a weapon; (5) sexual assault; and (6) uttering a death threat - The accused appealed the convictions, asserting that Crown counsel made inflammatory remarks in his closing address to the jury when he described the accused's testimony as "pure fiction" and "pure fabrication" - The New Brunswick Court of Appeal dismissed the appeal - The court stated that "[w]hile Crown counsel should not express his or her personal opinion regarding the credibility of the accused ..., that is not what occurred in this case. By prefacing his remarks with the words 'We respectfully submit' Crown counsel maintained an appropriate degree of objectivity and distance. In any event, I am of the view the references to fiction and fabrication did not deprive the accused of his right to a fair trial for the following reasons. First, the remark consisted of only one short sentence in which Crown counsel suggests the accused is not telling the truth. Such an approach can be distinguished from those in which Crown counsel makes numerous and lengthy remarks regarding the credibility of the accused .... Second, the words 'We respectfully submit' attenuated the possible inflammatory effect that any personal opinion could have had on the jury. Third, in his instruction to the jury, the trial judge clearly stated what is considered to be evidence and what is not. He properly instructed the jury to consider all the evidence in reaching their verdict and informed them that counsel's submissions did not constitute evidence. In my view, the trial judge's final instruction neutralized any harm that was not already remedied by Crown counsel's introductory words." - See paragraphs 24 to 28.

Criminal Law - Topic 4415

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Respecting evidence of witnesses - [See Criminal Law - Topic 4412 ].

Criminal Law - Topic 4488

Procedure - Trial - Representation of accused - [See Civil Rights - Topic 4620.1 ].

Criminal Law - Topic 4964

Appeals - Indictable offences - New trials - Grounds - Competence of counsel - [See Civil Rights - Topic 4620.1 ].

Criminal Law - Topic 5415

Evidence and witnesses - Witnesses - Cross-examination of - The accused abducted the victim from a mall parking lot - Over the ensuing 27 days, the accused bound and sexually assaulted the victim, forced her to consume non-prescription drugs and stole personal items belonging to her - He was convicted of (1) kidnapping; (2) unlawful confinement; (3) theft; (4) assault with a weapon; (5) sexual assault; and (6) uttering a death threat - The accused appealed the convictions, asserting that the trial judge erred on two occasions with respect to the rule in Browne v. Dunn (1893 HL): (1) he improperly applied the rule to prevent him from asking questions of a police officer about tips from another officer; and (2) he improperly applied the rule when he permitted the Crown to recall the victim - The New Brunswick Court of Appeal dismissed the appeal - In both circumstances, the trial judge exercised his discretion after taking into account all of the circumstances - The exercise of discretion was not "founded upon an error of law, an error in the application of the governing principles or a palpable and overriding error in the assessment of the evidence" nor was it unreasonable, in the sense that nothing in the record could justify it - See paragraphs 32 to 35.

Criminal Law - Topic 5854

Sentence - Theft - [See Criminal Law - Topic 5904 ].

Criminal Law - Topic 5868

Sentence - Forcible confinement or seizure - [See Criminal Law - Topic 5904 ].

Criminal Law - Topic 5883

Sentence - Assault with a weapon or assault causing bodily harm - [See Criminal Law - Topic 5904 ].

Criminal Law - Topic 5895

Sentence - Threats - [See Criminal Law - Topic 5904 ].

Criminal Law - Topic 5904

Sentence - Kidnapping and abduction - The 62 year old accused abducted the victim from a mall parking lot - Over the ensuing 27 days, the accused bound and sexually assaulted the victim, forced her to consume non-prescription drugs and stole personal items belonging to her - He was convicted of (1) kidnapping; (2) unlawful confinement; (3) theft; (4) assault with a weapon; (5) sexual assault; and (6) uttering a death threat - He was sentenced to 18 years' imprisonment, less time served, as well as ordered under s. 743.6 that he be ineligible for parole until he had served one-half of that term - The accused applied for leave to appeal the sentence - The New Brunswick Court of Appeal denied leave to appeal - In addressing the objectives of sentencing, the trial judge, among other factors, considered the accused's lengthy criminal record, the horrendous nature of the crimes for which he was convicted, the victim-impact statements of the victim and those close to her, and the need for specific and general deterrence - He considered the possibility of the accused's rehabilitation - The trial judge's approach to the sentencing function and his analysis was beyond reproach - In response to the accused's concern about the trial judge's characterization of the crimes as "horrendous", the court agreed that he appropriately described the crimes committed by the accused - See paragraphs 36 to 40.

Criminal Law - Topic 5932

Sentence - Sexual assault - [See Criminal Law - Topic 5904 ].

Droit criminel - Cote 4322.5

Procédure - Jury - Généralités - Vérificateurs - Généralités - [Voir Criminal Law - Topic 4322.5 ].

Droit criminel - Cote 4375.5

Procédure - Exposé ou directives - Juge seul ou avec jury - Directives au sujet d'une mauvaise conduite ou de condamnations antérieures - [Voir Criminal Law - Topic 4375.5 ].

Droit criminel - Cote 4412

Procédure - Observations introductives et finales - Résumé - Avocat - Observations finales - Opinion concernant la culpabilité - [Voir Criminal Law - Topic 4412 ].

Droit criminel - Cote 4415

Procédure - Observations introductives et finales - Résumé - Avocat - Observations finales - Concernant la preuve des témoins - [Voir Criminal Law - Topic 4415 ].

Droit criminel - Cote 4488

Procédure - Procès - Représentation du prévenu - [Voir Criminal Law - Topic 4488 ].

Droit criminel - Cote 4964

Appels - Actes criminels - Nouveaux procès - Motifs - Compétence de l'avocat - [Voir Criminal Law - Topic 4964 ].

Droit criminel - Cote 5415

Preuve et témoins - Témoins - Contre-interrogatoire des témoins - [Voir Criminal Law - Topic 5415 ].

Droit criminel - Cote 5854

Peine - Vol - [Voir Criminal Law - Topic 5854 ].

Droit criminel - Cote 5868

Peine - Séquestration - [Voir Criminal Law - Topic 5868 ].

Droit criminel - Cote 5883

Peine - Voies de fait avec arme ou voies de fait causant des lésions corporelles - [Voir Criminal Law - Topic 5883 ].

Droit criminel - Cote 5895

Peine - Menaces - [Voir Criminal Law - Topic 5895 ].

Droit criminel - Cote 5904

Peine - Enlèvement et rapt - [Voir Criminal Law - Topic 5904 ].

Droit criminel - Cote 5932

Peine - Agression sexuelle - [Voir Criminal Law - Topic 5932 ].

Droits et libertés - Cote 4620.1

Droit à l'assistance d'un avocat - Généralités - Droit à l'assistance efficace d'un avocat - [Voir Civil Rights - Topic 4620.1 ].

Cases Noticed:

Bartlett v. Murphy (2012), 388 N.B.R.(2d) 388; 1006 A.P.R. 388; 2012 NBCA 44, refd to. [para. 4].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 2000 SCC 22, refd to. [para. 5].

R. v. Lavoie (J.) (2010), 363 N.B.R.(2d) 55; 936 A.P.R. 55; 2010 NBCA 52, refd to. [para. 6].

R. v. Michaud (V.) (2011), 376 N.B.R.(2d) 170; 970 A.P.R. 170; 2010 NBCA 52, refd to. [para. 7].

R. v. L.S.C. (2003), 327 A.R. 262; 296 W.A.C. 262; 2003 ABCA 105, refd to. [para. 7].

R. v. Elliott, [1975] O.J. No. 1185 (C.A.), refd to. [para. 7].

R. v. Brooks (L.A.) (2008), 331 N.B.R.(2d) 268; 849 A.P.R. 268; 2008 NBCA 49, refd to. [para. 8].

R. v. DiLillo (1991), 6 B.C.A.C. 199; 13 W.A.C. 199 (C.A.), refd to. [para. 12].

R. v. Thompson (D.), [2009] O.T.C. Uned. A92 (S.C.), refd to. [para. 12].

R. v. Li (H.-W.) (2004), 184 O.A.C. 117 (C.A.), refd to. [para. 14].

R. v. Hubbert, [1975] O.J. No. 2595 (C.A.), affd. [1977] 2 S.C.R. 267; 15 N.R. 139, refd to. [para. 14].

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271, refd to. [para. 14].

R. v. Cardinal (K.M.) (2005), 380 A.R. 174; 363 W.A.C. 174; 2005 ABCA 303, refd to. [para. 14].

R. v. Snow (D.A.) (2004), 191 O.A.C. 212 (C.A.), refd to. [para. 14].

R. v. English (E.) (1993), 111 Nfld. & P.E.I.R. 323; 348 A.P.R. 323 (Nfld. C.A.), leave to appeal refused (1994), 172 N.R. 160 (S.C.C.), refd to. [para. 16].

R. v. Fischer (P.D.) (2005), 212 B.C.A.C. 199; 350 W.A.C. 199; 2005 BCCA 265, leave to appeal refused (2005), 349 N.R. 393 (S.C.C.), refd to. [para. 17].

R. v. Cece (E.R.) et al. (2004), 190 O.A.C. 220 (C.A.), refd to. [para. 17].

R. v. O'Brien (R.S.) (2003), 257 N.B.R.(2d) 243; 674 A.P.R. 243; 2003 NBCA 28, refd to. [para. 19].

R. v. J.D.C. (2003), 168 O.A.C. 234 (C.A.), dist. [para. 22].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 23].

R. v. King (R.A.) (2008), 338 N.B.R.(2d) 163; 866 A.P.R. 163; 2008 NBCA 81, leave to appeal refused (2009), 402 N.R. 392 (S.C.C.), refd to. [para. 26].

R. v. Charest (A.), [1990] J.Q. No. 405 (Que. C.A.), refd to. [para. 27].

R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321, refd to. [para. 28].

R. v. Doiron (E.) (2007), 315 N.B.R.(2d) 205; 815 A.P.R. 205; 2007 NBCA 41, refd to. [para. 28].

R. v. L.L. (2009), 249 O.A.C. 99; 2009 ONCA 413, dist. [para. 28].

R. v. Kokopenace (C.) (2011), 282 O.A.C. 254; 2011 ONCA 536, refd to. [para. 28].

Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 32].

R. v. Lyttle (M.G.), [2004] 1 S.C.R. 193; 316 N.R. 52; 184 O.A.C. 1; 2004 SCC 5, refd to. [para. 33].

R. v. Gardiner (J.I.) (2010), 362 N.B.R.(2d) 179; 934 A.P.R. 179; 2010 NBCA 46, refd to. [para. 33].

Beaverbrook Canadian Foundation v. Beaverbrook Art Gallery (2006), 302 N.B.R.(2d) 161; 784 A.P.R. 161; 2006 NBCA 75, refd to. [para. 35].

R. v. LeBlanc (M.D.) (2011), 370 N.B.R.(2d) 385; 956 A.P.R. 385; 2011 NBCA 28, refd to. [para. 37].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 37].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 37].

Authors and Works Noticed:

Béliveau, Pierre, and Vauclair, Martin, Traité général de preuve et procédure pénales (2009), p. 827 [para. 28].

Counsel:

Avocats:

Romeo Jacques Cormier, appeared in person;

Cameron H. Gunn, for the respondent.

This appeal and application were heard on April 10, 2012, by Larlee, Richard and Bell, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered in both official languages by Bell, J.A., on August 30, 2012.