WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court Information

Court of Appeal for Ontario

Date: 2017-08-10

Docket: C62239

Panel: Laskin, Simmons and Pardu JJ.A.

Between

Her Majesty the Queen Respondent

and

Robert Lavergne Appellant

Counsel:

• Adam Weisberg, for the appellant
• Craig Harper, for the respondent

Heard: June 12, 2017

On appeal from the conviction entered by Justice Allan G. Letourneau of the Ontario Court of Justice on March 22, 2016, and from the sentence imposed on March 22, 2016.

REASONS FOR DECISION

A. INTRODUCTION

[1] The appellant Robert Lavergne, now in his early 70s, pleaded guilty to two counts of sexual assault of two young girls, one 12 years old and the other nine years old at the time. Lavergne pleaded guilty after plea negotiations conducted by his lawyer and the Crown. Following a joint submission, he was sentenced to two years less a day in the reformatory, together with three years' probation and standard ancillary orders.

[2] Lavergne appeals both his conviction and his sentence. He has filed fresh evidence alleging that the ineffective assistance of his counsel undermined both the validity of his guilty pleas and the fitness of his sentence. Both Lavergne and his trial counsel filed affidavits on which each was cross-examined. The affidavits and cross-examinations form the bulk of the appeal record before us.

[3] To be valid, a guilty plea must be voluntary, unequivocal and informed. Initially Lavergne alleged that his guilty pleas were both involuntary and uninformed. However, from his answers on his cross-examination it became apparent that his guilty pleas were informed. He admitted that he was aware of the nature of the allegations against him, the meaning of the word "guilty" and the effect and consequences of his pleas.

[4] Thus in this court Lavergne's principal submission was that his guilty pleas were involuntary. He contends that his trial counsel was unprepared to conduct his defence, and improperly pressured him to plead guilty. He also contends that but for his trial counsel's ineffective assistance his sentence would have been different. He asks that we set aside his guilty pleas, or reduce his sentence to 12 months.

[5] For the brief reasons that follow we dismiss both his conviction appeal and his sentence appeal.

B. THE SEXUAL ASSAULTS

[6] Lavergne pleaded guilty to two incidents of sexual assault of G.H. in March and November 2012. She was 12 years old at the time. He also pleaded guilty to three incidents of sexual assault of L.P. in the summer of 2014. She was nine at the time. The sexual assaults included kissing and fondling, and in the case of G.H. oral sex. There was no intercourse.

(a) Sexual Assault of G.H.

[7] Lavergne owned a country property where he raised and trained horses. G.H.'s grandparents lived across the road.

[8] The first incident occurred when Lavergne asked G.H. to come over to his property to help him with his horses. She stayed overnight. During the night she awoke to find that Lavergne had pulled her pants down and was performing oral sex on her. She resisted, kicking him to make him stop.

[9] The second incident took place the next day when Lavergne took G.H. home. He tried to put his hands into her pants. She told him to stop, but he didn't. Lavergne admitted that after these incidents he gave G.H. money and a cell phone.

[10] Lavergne was not charged with sexually assaulting G.H. until June 2015, beyond the six month limitation period for proceeding summarily. He was thus charged by indictment. When he pleaded guilty no trial date had been set.

(b) Sexual Assault of L.P.

[11] L.P. lived with her mother and three siblings in a townhouse adjacent to Lavergne's home. Lavergne was a friend of the family, and his great granddaughter was a good friend of L.P.

[12] The first incident occurred when L.P. stayed overnight at Lavergne's place, and slept in a tent with his great granddaughter. Lavergne spent a period of time in the tent as well. During the night he rubbed L.P. in her vaginal area. She told him to stop, and he did, briefly. Then he began touching her again, under her pyjamas. Again, she told him to stop and he did.

[13] The second incident occurred later in the summer. Lavergne and L.P. planned to go fishing. Lavergne took her into his house, ostensibly to get lures. He told her to go to the bedroom in the basement, where he touched her breasts, pulled down her shirt and then kissed her breasts. She told him to stop and he did.

[14] The third incident occurred when Lavergne took L.P. to look at a boat. L.P sat on a bed inside the boat. Lavergne started to kiss her and tried to put his tongue in her mouth. She asked him to stop and he did. Lavergne told her not to tell anyone as he would likely go to jail.

[15] In September 2014, Lavergne was charged with sexually assaulting L.P. The Crown proceeded summarily. A five day trial was scheduled – one day in March 2016 and four days in May 2016. On March 22, 2016, Lavergne pleaded guilty in the Ontario Court of Justice to sexually assaulting both girls.

C. THE CONVICTION APPEAL: LAVERGNE'S GUILTY PLEAS WERE VOLUNTARY

[16] To be voluntary a guilty plea must be a conscious choice for reasons the accused considers appropriate. Lavergne submits that trial counsel's ineffective assistance rendered his pleas involuntary. A claim of ineffective assistance has two components: a performance component and a prejudice component. See R. v. G.(D.M.), 2011 ONCA 343, 275 C.C.C. (3d) 295, at para. 100.

[17] The performance component asks whether trial counsel's representation fell below a standard of competence. However, the standard is reasonableness and carries with it a strong presumption that counsel's conduct fell within a reasonable range of professional advice and services. The prejudice component asks whether counsel's ineffectiveness resulted in a miscarriage of justice. Typically, if no prejudice has been established, it is undesirable to consider the performance of counsel. The burden is on Lavergne to show the involuntariness of his pleas and the ineffectiveness of his trial counsel.

[18] Lavergne submits that a miscarriage of justice occurred for two reasons. First, trial counsel's incompetent assessment of the case and of potential defences led him to pressure Lavergne into pleading guilty. And second, trial counsel failed to ensure that Lavergne did not plead guilty because of high potential trial costs.

[19] In support of his submission Lavergne points out that his trial counsel had not conducted a criminal trial for many years. He also points to a lengthy list of things he alleges his trial counsel did not know, did not do but ought to have done or ought to have done differently.

[20] We found it unnecessary to address the list. Most items on the list have no relevance or would have been unhelpful to Lavergne's defence. The others fell into the category of matters on which defence lawyers might reasonably differ. On our assessment of the record, we conclude that Lavergne received reasonably competent advice, no miscarriage of justice occurred and his pleas of guilty were voluntary. To support our conclusion, we point to the following considerations.

(a) Trial counsel reasonably sought instructions to negotiate a plea

[21] Lavergne's counsel advised Lavergne of the problems in his case and properly sought instructions to discuss a plea resolution with the Crown. Lavergne gave him those instructions.

(b) Trial counsel's assessment of the case was reasonable

[22] After discussing this case with Lavergne and reviewing the Crown's disclosure, which included DVDs of nine witnesses and Lavergne's video statement, trial counsel reasonably concluded that the Crown had a strong case and that Lavergne had a weak defence.

[23] In trial counsel's opinion both G.H. and L.P. seemed credible, had no animus toward Lavergne and would make good witnesses. The Crown could likely bring a successful similar fact application, either to make out the actus reus of the offences or to rebut any defence of innocent association. Lavergne, on the other hand, would likely make a poor witness. Although he denied committing the sexual assaults, he admitted having the opportunity to do so and was evasive about why he spent time with G.H. and L.P. His admission that he gave G.H. money and a cell phone was especially problematic.

(c) Trial counsel took reasonable steps to ensure Lavergne understood the plea agreement

[24] After the Crown and trial counsel agreed to the details of the plea agreement, Lavergne went to his trial counsel's office and signed an "Acknowledgment and Direction", setting out the terms of the agreement. Lavergne claimed he was illiterate. However, trial counsel dictated the direction in Lavergne's presence (to a secretary over the intercom) and told Lavergne to stop him if he did not understand anything. Lavergne did not stop him. After the document was typed, trial counsel read it to Lavergne and explained it to him in layman's terms. In his cross-examination, Lavergne agreed he understood and could not dispute what had been read and explained to him.

(d) Lavergne's evidence on his cross-examination was implausible

[25] Lavergne never gave his trial counsel an alternative narrative for what happened with G.H. and L.P. He claimed that he had a poor memory. In his affidavit in support of his fresh evidence application, he maintained a blank denial. Yet, on his cross-examination, he set out in great detail his version of what had occurred with G.H. and L.P. That version simply lacks credibility.

(e) The absence of an affidavit from Lavergne's wife undermines his claim

[26] Lavergne claimed his wife wanted to be present during his discussions with trial counsel to make sure he understood the discussions and any documents he signed. Yet, when Lavergne signed the Acknowledgment and Direction, his wife remained in the outer room with trial counsel's secretary. According to trial counsel Lavergne made it abundantly clear he did not want his wife in the room. His wife's silence lends support to trial counsel's evidence.

[27] Also, Lavergne signed the Acknowledgment and Direction three weeks before he pleaded guilty. His wife apparently did nothing during those three weeks after being told her husband was going to plead guilty. And she has offered no evidence to explain her silence.

(f) Lavergne has not established that his trial counsel pressured him financially to plead guilty

[28] The evidence of Lavergne and his trial counsel diverge on their financial arrangements. Lavergne's evidence was that his trial counsel told him each trial would cost $60,000 and he should sell his house to pay his legal fees. Trial counsel denies he told Lavergne anything of the sort. He denies telling him to plead guilty to avoid further legal costs or telling him he should sell his house. Trial counsel's evidence was that just before the pleas, Lavergne said he was running short of money, to which trial counsel replied something to the effect of "[l]et's see how it goes, don't worry about it for now". Again the absence of an affidavit from Lavergne's wife is telling. Her silence on whether her husband was being financially pressured supports trial counsel's evidence.

[29] For these reasons we dismiss the conviction appeal.

D. THE SENTENCE APPEAL: THE SENTENCE WAS FIT

[30] The sentence of two years less a day for each sexual assault, to be served concurrently, was the product of a joint submission. Lavergne submits that the sentence for the sexual assault of L.P. was illegal, that the overall sentence was too high and that he agreed to it only because trial counsel told him he was facing four to five years in custody after a trial and would likely die in prison. Lavergne adds that he is Indigenous, which was not considered by the sentencing judge. He contends that in the light of his age and lack of a criminal record, a global sentence of 12 to 18 months would have been fit.

[31] We accept that the sentence of two years less a day for the sexual assault of L.P. was illegal. As the Crown proceeded summarily, the maximum sentence was 18 months, a fact missed not only by trial counsel but apparently as well by the Crown and the sentencing judge. We also accept that the Crown likely proceeded by indictment on the sexual assault of G.H. because it missed the six month limitation period for proceeding summarily.

[32] Nonetheless, in our view, an overall sentence of two years less a day was entirely reasonable, was not contrary to the public interest and indeed was justified by the multiple incidents of sexual assault of two young girls. Although the sentence for the sexual assault of L.P. was illegal, consecutive sentences were available as these were two separate sexual assaults. Also important, the sentencing judge told both the Crown and trial counsel he would not go below two years less a day, even on a joint submission.

[33] Finally, although Lavergne is Indigenous, the record does not disclose anything else beyond his statement of his Indigenous heritage. There is no evidence of any systemic or background factors which may have played a part in bringing this accused before the court. A bare assertion of Indigenous heritage, without more, would not have had any impact on the sentence imposed. (See R. v. Ipeelee, 2012 SCC 13.) We therefore dismiss Lavergne's sentence appeal.

E. CONCLUSION

[34] Lavergne's guilty pleas were voluntary. Thus, his conviction appeal is dismissed. A sentence of two years less a day plus three years' probation was fit and not contrary to the public interest. Leave to appeal sentence is granted but the sentence appeal, too, is dismissed.

"John Laskin J.A."

"Janet Simmons J.A."

"G. Pardu J.A."