CITATION: R. v. Kohl, 2009 ONCA 254
DATE: 20090320
DOCKET: C48311
COURT OF APPEAL FOR ONTARIO
Armstrong, Lang and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Kevin Kohl
Appellant
Michael Dineen, for the appellant
Brad Greenshields, for the respondent
Heard: September 11, 2008
On appeal from the conviction entered on June 20, 2007 and the sentence imposed on October 1, 2007 by Justice D. Terry Vyse of the Ontario Court of Justice.
ADDENDUM
Armstrong J.A.:
[1] In reasons for judgment released on February 2, 2009, we granted leave to appeal sentence and allowed the sentence appeal by reducing the three-year sentence to two years plus probation for three years.
[2] After the reasons for judgment were released, counsel for the appellant advised the court that he believed that the probation order was illegal. He brought to our attention the fact that the trial judge had made the original sentence consecutive to a previous sentence of five years and nine months, which the appellant was still serving at the time of his sentencing. The previous sentence expired on March 18, 2008.
[3] Counsel for the appellant submits that pursuant to s. 139 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the “CCRA”), the appellant, at the time he was sentenced by the trial judge, was deemed to be serving a single merged sentence of five years and nine months plus the new three-year sentence. Section 139(1) of the CCRA provides:
Where a person who is subject to a sentence that has not expired receives an additional sentence, the person is, for the purposes of the Criminal Code, the Prisons and Reform-atories Act and this Act, deemed to have been sentenced to one sentence commencing at the beginning of the first of those sentences to be served and ending on the expiration of the last of them to be served.
[4] Counsel for the appellant submits that by reason of the application of s. 139(1) of the CCRA, there is a merged sentence in this case that exceeds two years and a probation order is not available. He relies on the reasons for judgment of this court in R. v. Currie (1982), 1982 3887 (ON CA), 65 C.C.C. (2d) 415, at p. 416:
In our opinion, s. 14 of the Parole Act does not avail to make the sentence pronounced on January 8, 1980, one which, of and by itself, contravened s. 663(1)(b) [am. 1972, c. 13, s. 58] of the Criminal Code in so far as the probation order is concerned. Nevertheless, in our opinion, an order of probation should not be imposed when it is made to follow a sentence of not more than two years if that sentence, when added to the remaining portion of another sentence then being served to which it is made consecutive, in its totality exceeds two years. In our opinion the intention of Parliament as it emerges from s. 663(1)(b) [now s. 731(1)(b)] was to limit the making of probation orders to situations where either the sentence to be served or the totality of all sentences then to be served, as the case may be, does not exceed the period of two years specified in s. 663(1)(b). [Citations omitted.]
[5] Section 14 of the Parole Act, R.S.C. 1970, c. P-2, as amended by R.S.C. 1970, c. 31 (1st supp.), s. 1, and S.C. 1977-78, c. 22, s. 19, is a predecessor to s. 139 of the CCRA which replaced the Parole Act in 1992. Section 663(1)(b), as noted above, is now s. 731(1)(b) of the Criminal Code. It is worth noting that this court in Currie arrived at its decision without relying on the legal fiction of merger contained in s. 14 of the Parole Act. No explanation was given for the court’s view of s. 14. However, in R. v. Miller (1987), 1987 6791 (ON CA), 36 C.C.C. (3d) 100, Howland C.J.O., writing for the court, at p. 104, said that “[t]he operation of s. 14(1) of the Parole Act must be borne in mind.” Although Howland C.J.O. adopts Currie, he suggests that s. 14 of the Parole Act strengthens the opinion that where the totality of sentences exceeds two years, a probation order is not available.
[6] Counsel for the appellant also submits that during the sentencing hearing, both trial counsel for the appellant and counsel for the Crown advised the trial judge that probation was not available in this case.
[7] Counsel for the Crown on appeal takes a different position. He submits that the Court of Appeal imposed a fresh sentence on February 2, 2009. As of February 2, 2009, there was no other sentence already being served. Therefore, merger was not an issue. He further submits that, even if merger applies, in a recent judgment of this court in R. v. Carrignan (2003), 2003 19233 (ON CA), 172 C.C.C. (3d) 1, leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 153, Cronk J.A. restricted the purpose of s. 139 of the CCRA to merging sentences for the purpose of parole eligibility but “to no broader purpose”.
[8] There are three separate reasons for judgment in Carrignan. None addresses directly the issue of merger as it arises in this case. I note that in Carrignan, there are different views of the application and reach of s. 139(1) of the CCRA. Based on Currie, it is not necessary to decide the issue before us by the application of s. 139(1). However, as Howland C.J.O. suggested in Miller, the analysis is strengthened by reference to s. 139(1) of the CCRA.
[9] I now turn to the relevant provisions of the Criminal Code. Pursuant to ss. 687(1)(a) and (b) of the Criminal Code, this court’s jurisdiction is either to vary the sentence or dismiss the sentence appeal. I further note that s. 687(2) provides:
A judgment of a court of appeal that varies the sentence of an accused who was convicted has the same force and effect as if it were a sentence passed by the trial court.
Also, s. 719(1) of the Criminal Code provides:
A sentence commences when it is imposed, except where a relevant enactment otherwise provides.
[10] Based on the above, I do not agree that the sentence we imposed on February 2, 2009 is a “fresh” sentence. The sentence we imposed is deemed to be effective as of the date of the original sentence of the trial judge. The reasons in Currie therefore apply and an order for probation is not available. This result is also consistent with the position taken by both defence counsel and Crown counsel at trial.
[11] Finally, counsel for the Crown has noted that the court issued its final order in this matter on February 3, 2009. Although he does not expressly submit that the court cannot now vary its order, I feel obliged to address such issue briefly out of an abundance of caution.
[12] I am satisfied that the court has inherent jurisdiction to correct an error such as this: see R. v. H.(E.) (1997), 1997 418 (ON CA), 33 O.R. (3d) 202 (C.A.), at p. 207. Also, pursuant to s. 683(3) of the Criminal Code:
A court of appeal may exercise, in relation to proceedings in the court, any powers not mentioned in subsection (1) that may be exercised by the court on appeals in civil matters, …
In civil matters, rule 59.06(1) of the Rules of Civil Procedure provides:
59.06 (1) An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in a proceeding.
[13] In the result, I would strike the probation order made on February 2, 2009.
“Robert P. Armstrong J.A.”
“I agree Susan Lang J.A.”
“I agree G. Epstein J.A.”