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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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 victim of the right to make an application for the order; and

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

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

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 of Appeal for Ontario

Date: 2018-05-23

Docket: C63070

Panel: MacPherson, Hourigan and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

R.P. Appellant

R.P., acting in person

Peter Copeland, appearing as duty counsel

Justin Reid, for the respondent

Heard: May 8, 2018

On appeal from the conviction entered by Justice Irving W. André of the Superior Court of Justice on July 25, 2016, and from the sentence imposed on November 15, 2016.

By the Court

[1] Conviction and Sentence

Following a trial before André J. of the Superior Court of Justice, the appellant was convicted of sexual interference and attempt to obstruct justice. He received a sentence of 27 months' imprisonment less nine months and 24 days for pre-sentence custody. The trial judge imposed several ancillary orders on sentence, including a Sex Offender Information Registration Act, S.C. 2004, c. 10 ("SOIRA") order under s. 490.012 of the Criminal Code for life.

[2] Appeal Issues

At the appeal hearing, the appellant, with the assistance of duty counsel from the Pro Bono Inmate Appeal Program, abandoned his conviction appeal. On his sentence appeal, he challenged only the lifetime SOIRA order. His position is that the SOIRA order should have a duration of 20 years.

[3] Crown's Position

The respondent agrees with the appellant's position on this issue. Both trial counsel indicated that a SOIRA order of 20 years was appropriate. In spite of this, the trial judge imposed a SOIRA order with a lifetime duration.

[4] Statutory Framework for SOIRA Orders

The SOIRA order in this case was imposed under s. 490.012(1) of the Code:

When a court imposes a sentence on a person for an offence referred to in paragraph (a), (c), (c.1), (d), (d.1), or (e) of the definition "designated offence" in subsection 490.011(1) …, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.013.

[5] Duration of SOIRA Orders

Section 490.013(2) of the Code deals with the duration of SOIRA orders:

An order made under subsection 490.012(1) or (2)

(a) ends 10 years after it was made if the offence in connection with which it was made was prosecuted summarily or if the maximum term of imprisonment for the offence is two to five years;

(b) ends 20 years after it was made if the maximum term of imprisonment for the offence is 10 or 14 years;

(c) applies for life if the maximum term of imprisonment for the offence is life.

[6] Correct Duration for Sexual Interference

Sexual interference is a "designated offence" with a maximum sentence of 14 years if the charge was laid in an indictment. Hence the SOIRA order in this case should have had a duration of 20 years, not life.

[7] Jurisdictional Problem

In spite of the shared agreement between the appellant and respondent on this issue, the respondent raises a problem about how to fix it. The respondent says that this court does not have jurisdiction to hear an appeal relating to the SOIRA order. That is because there is no longer a right to appeal a SOIRA order imposed under s. 490.012(1) of the Code.

[8] R. v. Chisholm Analysis

This problem was first identified by Drapeau C.J.N.B. in R. v. Chisholm, 2012 NBCA 79, at para. 2:

I reluctantly conclude there is no right of appeal, with or without leave, from [SOIRA] orders. It follows that the underlying appeal proceedings were initiated without lawful authority. In my view, the appropriate remedy is to quash the Notice of Appeal….

In reaching this conclusion, Drapeau C.J.N.B. considered whether a SOIRA order could be considered part of the "sentence" imposed by a trial court and, therefore, amenable to appeal under relevant sentence appeal provisions in the Code. His conclusion, at para. 10, was that "a SOIRA order issued by virtue of s. 490.012(1) is not a 'sentence' within the meaning of Part XXI ('APPEALS – INDICTABLE OFFENCES')." In support of this conclusion, Drapeau C.J.N.B. set out, at paras. 11-20, ten factors, considerations and interpretations relating to the history and wording of the key SOIRA provisions. We do not repeat all of these factors in these reasons, but highlight the following as particularly persuasive:

• Parliament eliminated the broad right of appeal from SOIRA orders in s. 490.014 of the Code;
• The weight of authority prior to the amendments that eliminated the broad right of appeal was that a SOIRA order is not a sentence;
• SOIRA orders do not fall within the definition of "sentence" in s. 673 of the Code; and
• DNA orders are procedurally similar to SOIRA orders; courts have consistently held that DNA orders do not form part of a sentence.

[9] Adoption of Chisholm Across Canada

Importantly, several provincial appeal and trial courts have adopted the analysis and conclusion in Chisholm: see, for example, R. v. J.J.W., 2012 NSCA 96; R. v. Whiting, 2013 SKCA 127; R. v. Boucher, 2013 QCCA 345; R. v. L.V.R., 2016 BCCA 86; R. v. Alvarenga-Alas, 2014 ONSC 4725; R. v. Colosie, 2016 ONSC 1708; R. v. Krause, 2015 ABQB 637; and R. v. R.M., 2015 NLTD(G) 101.

[10] Prior Ontario Court of Appeal Decisions

There are two cases, both from this court, which might suggest a different result.

In R. v. A.C., 2012 ONCA 608, the Attorney General sought an increase in the duration of a SOIRA order from ten to 20 years. The request was unopposed. It appears that no one raised the issue of jurisdiction. In granting the request, the court said, at para. 10:

In our view, in the circumstances of this case, the sentence imposed reflects no error in principle except that, as the parties agree, the period of the SOIRA order should be increased to 20 years to accord with s. 490.013(2)(b) of the Criminal Code.

Similarly, in R. v. Dimmick, 2015 ONCA 402, Mr. Dimmick sought a reduction of a lifetime SOIRA order to 20 years. The Crown agreed. Again, it appears that no one raised the issue of jurisdiction. In reducing the order, the court said, at para. 11:

In addition to the seven year sentence, the trial judge imposed a lifetime SOIRA order. The maximum terms for the offences were 10 and 14 years. The respondent Crown agrees with the appellant that the trial judge erred in this regard and that the order should be reduced to 20 years and we so order.

[11] Distinguishing Prior Decisions

Because the jurisdictional issue was not raised or addressed in A.C. and Dimmick, we do not think they preclude this court from adopting Chisholm and its national progeny. This court can do so now that the issue has been properly advanced and argued.

[12] The Inherent Jurisdiction Solution

We turn to the final issue. In Chisholm, the court quashed the Crown appeal for want of jurisdiction. The result was that a SOIRA order with an erroneous duration of 20 years continued in force instead of the lifetime order that should have been imposed.

In this appeal, the fact situation is the other way. A convicted person seeks to reduce an erroneous lifetime SOIRA order to an order with a correct duration of 20 years. Obviously, his position is an attractive one. If we must quash the appeal, is there any other way for the appellant to obtain the just remedy he seeks?

The answer is 'Yes', as demonstrated convincingly in the excellent judgment by Goldstein J. of the Superior Court of Justice in Alvarenga-Alas.

[13] Alvarenga-Alas: The Mandamus Remedy

In Alvarenga-Alas, a trial judge convicted Mr. Alvarenga-Alas of two counts of sexual assault. At the sentencing hearing, the Crown, without opposition from the defence, erroneously indicated that Mr. Alvarenga-Alas should be placed on the sex offender registry for ten years. The trial judge imposed a ten year SOIRA order. However, the order should have been for life. The Crown brought the error to the trial judge's attention and asked her to correct it. She declined, saying she was functus officio.

The Crown brought an application for the prerogative writ of mandamus, arguing that the trial judge should have exercised her jurisdiction and corrected her original order. Goldstein J. determined that the trial judge was not functus and made the mandamus order.

[14] Inherent Jurisdiction to Correct SOIRA Orders

The basis for the mandamus order, according to Goldstein J., was that the trial judge had an inherent jurisdiction to correct the erroneous SOIRA order. In reaching this conclusion, Goldstein J. carefully considered and applied – correctly in our view – R. v. Burke, 2002 SCC 55 and R. v. Malicia. Citing R. v. D.M., 2013 ONSC 141, Goldstein J. relied on four factors that supported his conclusion that the trial judge had an inherent jurisdiction to correct an erroneous SOIRA order:

• The correction or amendment is more clerical or administrative in nature since the error relates to a statutorily mandated ancillary order with a fixed duration, one for which there is no residual discretion lying with the court;
• Indeed, the making of a SOIRA order does not require a judge to make any substantive decision - there is no judgment or discretion involved; nor is there any consideration of law or evidence;
• No prejudice flows from the correction or amendment of the order since all it would do is bring it into conformity with legal requirements; and
• It would always be a judge's manifest intention to make a SOIRA order compliant with the correct mandatory duration for such orders set out in s. 490.013 of the Code.

[15] Conclusion on Jurisdiction

For these reasons, and under the jurisprudential umbrella of Burke and Malicia, we conclude that, although there is no right to appeal a SOIRA order imposed pursuant to s. 490.012(1) of the Code, such an order may be corrected by the judge who imposed it who, in these particular circumstances, retains inherent jurisdiction to do so.

[16] Disposition

The appeal is quashed for want of jurisdiction. The appellant, perhaps with the assistance of duty counsel, may return the matter to the trial judge for correction of the erroneous SOIRA order.

Released: May 23, 2018

"J.C. MacPherson J.A."

"C.W. Hourigan J.A."

"B.W. Miller J.A."