



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    that could identify the complainant or a witness shall not be published in any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).

(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.

(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.

(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.

(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 OF APPEAL FOR ONTARIO

CITATION: R. v. Lavergne, 2017 ONCA 642

DATE: 20170810

DOCKET: C62239

Laskin, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Lavergne

Appellant

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 Lavergnes 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 counsels 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
    didnt. 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 Lavergnes 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 Lavergnes 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: lavergnes
    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 counsels
    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 counsels representation
    fell below a standard of competence. However, the standard is reasonableness
    and carries with it a strong presumption that counsels conduct fell within a
    reasonable range of professional advice and services. The prejudice component
    asks whether counsels 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 counsels 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 Lavergnes 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]

Lavergnes 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 counsels assessment
    of the case was reasonable

[22]

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

[23]

In trial counsels 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 counsels 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 Lavergnes 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 laymans terms. In
    his cross-examination, Lavergne agreed he understood and could not dispute what
    had been read and explained to him.

(d)

Lavergnes 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 Lavergnes 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 counsels secretary. According to trial
    counsel Lavergne made it abundantly clear he did not want his wife in the room.
    His wifes silence lends support to trial counsels 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. Lavergnes 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 counsels 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]ets see how it goes, dont worry about it for now. Again
    the absence of an affidavit from Lavergnes wife is telling. Her silence on whether
    her husband was being financially pressured supports trial counsels 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 Lavergnes sentence
    appeal.

E.

conclusion

[34]

Lavergnes 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.


