COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Avon, 2013 ONCA 249

DATE: 20130422

DOCKET: C54455

Sharpe, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen in right of Ontario as represented by the Ministry of Community Safety and Correctional Services (The Ontario Sex Offender Registry)

Respondent

and

Pierre Avon

Appellant

Dominic Lamb and Solomon Friedman, for the appellant

Jinan Kubursi, for the respondent

Heard and released orally: April 11, 2013

On appeal against the dismissal of a certiorari application by Justice Robert Maranger of the Superior Court of Justice on June 30, 2011.

ENDORSEMENT

[1] The Criminal Proceedings Rules invoked by the appellant were made by the Superior Court of Justice as a superior court of criminal jurisdiction under s. 482(1) of the Criminal Code. Those rules apply to proceedings “in relation to any matter of a criminal nature or arising from or incidental to any such prosecution, proceeding, action or appeal”.

[2] Rule 1.02 of those rules describes the scope of their application in language that duplicates what appears in their enabling authority, s. 482(1) of the Criminal Code.

[3] Rule 43.01 establishes that Rule 43, which governs applications for certiorari and other extraordinary remedies is confined to “applications in criminal matters”.

[4] In R. v. Dyck, 2008 ONCA 309, this court held that Christopher’s Law was valid provincial law under heads 13 and 14 of s. 92 of the Constitution Act, 1867, not a colourable attempt to legislate criminal law. The regulatory scheme enacted by the legislation requires automatic offence based registration and does not permit exemption or authorize termination on a temporal basis.

[5] In our view, the Criminal Proceedings Rules have no application to the circumstances of this case. The remedy sought here is removal of the applicant’s name from a provincial sex offender registry, maintained by a provincial ministry, under a provincial law enacted under provincial legislative authority. The mere fact that the prohibition under s. 161 of the Criminal Code was imposed in criminal proceedings under Part XXVII of the Criminal Code, where it is not expressly included in the expansive definition of “sentence”, does not convert this application to a criminal “proceeding” within s. 482(1) of the Criminal Code or bring it within the purview of the Criminal Proceedings Rules enacted pursuant to that authority.

[6] In our view, this application should have been made to the Divisional Court under the Judicial Review Procedure Act. It follows that the judge below erred in taking jurisdiction under the Criminal Proceedings Rules. His decision was made without jurisdiction and must be quashed. This appeal is also quashed.

“Robert J. Sharpe J.A.”

“E.E. Gillese J.A.”

“David Watt J.A.”